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Migration Act 1958

Authoritative Version
  • - C2019C00339
  • In force - Superseded Version
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Act No. 62 of 1958 as amended, taking into account amendments up to Migration Amendment (Repairing Medical Transfers) Act 2019
An Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons
Administered by: Home Affairs
Registered 24 Dec 2019
Start Date 05 Dec 2019
End Date 10 Aug 2020
Table of contents.

Commonwealth Coat of Arms of Australia

Migration Act 1958

No. 62, 1958

Compilation No. 147

Compilation date:                              5 December 2019

Includes amendments up to:            Act No. 110, 2019

Registered:                                         24 December 2019

This compilation is in 2 volumes

Volume 1:       sections 1–261K

Volume 2:       sections 262–507

                        Schedule

                        Endnotes

Each volume has its own contents

 

About this compilation

This compilation

This is a compilation of the Migration Act 1958 that shows the text of the law as amended and in force on 5 December 2019 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

  

  

  


Contents

Part 2—Arrival, presence and departure of persons                                       1

Division 14—Recovery of costs from certain persons                                1

262........................ Liability to the Commonwealth for the cost of keeping, maintaining and removing certain persons        1

263........................ Secretary or Australian Border Force Commissioner able to issue notice of debt    2

264........................ Garnishee notice................................................................. 2

265........................ Debt from failure to comply with garnishee notice............. 4

266........................ Future debts........................................................................ 5

267........................ Secretary or Australian Border Force Commissioner may freeze amounts to secure future debts            5

268........................ Application of Division to the Crown................................. 6

Division 14A—Monitoring compliance with student visa conditions  7

Subdivision A—Preliminary                                                                                   7

268AA.................. Definitions.......................................................................... 7

268AB................... Division binds the Crown................................................... 8

268AD.................. Powers conferred on magistrates in their personal capacity 8

Subdivision B—Notices requiring information and documents                     8

268BA................... Production notices.............................................................. 8

268BB................... Contents of the production notice....................................... 9

268BC................... Serving production notices............................................... 10

268BD................... Attendance notices............................................................ 10

268BE................... Contents of attendance notice............................................ 11

268BF................... Scales of expenses............................................................ 11

268BG................... Reasonable compensation for giving copies..................... 11

268BH................... Offence: failing to comply with a notice........................... 12

268BI.................... Offence: giving false or misleading information............... 12

268BJ.................... Offence: giving false or misleading document.................. 12

268BK................... Information and documents that incriminate a person....... 13

268BL................... Copies of documents........................................................ 13

268BM.................. Officer may retain documents........................................... 13

268BN................... Owner of document must be given copy.......................... 14

268BO................... Retaining documents......................................................... 14

268BP................... Officer may apply to magistrate or tribunal member for a further period 15

268BQ................... Magistrate or tribunal member may order retention for further period     15

Subdivision C—Searching education providers’ premises                            16

268CA................... Authorised officer may enter premises for a visa monitoring purpose     16

268CB................... Being on premises with consent....................................... 17

268CC................... Consent............................................................................. 17

268CD................... Authorised officer may apply for monitoring warrant...... 17

268CE................... Magistrate or tribunal member may issue monitoring warrant 17

268CF................... Magistrate or tribunal member may require more information 18

268CG................... Contents of monitoring warrant........................................ 18

268CH................... Use of reasonable force and assistance............................. 18

268CI.................... Monitoring powers of authorised officers........................ 19

268CJ.................... Authorised officer on premises with consent may ask questions             20

268CK................... Authorised officer on premises under warrant may ask questions           21

268CL................... Offence: failure to answer question.................................. 21

268CM.................. Offence: giving false or misleading information............... 22

268CN................... Offence: giving or showing documents that are false or misleading in material particulars      22

268CO................... Use of electronic equipment in exercising monitoring powers 23

268CP................... Use of electronic equipment by experts............................ 23

268CQ................... Extension of period........................................................... 24

268CR................... Powers without warrant in emergency situations.............. 24

268CS................... Retaining seized things..................................................... 25

268CT................... Authorised officer may apply for a thing to be retained for a further period            25

268CU................... Magistrate or tribunal member may order that thing be retained               26

268CV................... Occupier to provide authorised officer with all facilities and assistance   26

268CW.................. Announcement before entry.............................................. 27

268CX................... Copy of monitoring warrant to be given to occupier before entry            27

268CY................... Compensation for damage to electronic equipment or data 27

268CZ................... Occupier entitled to be present during execution of monitoring warrant  28

268CZA................ Identity cards.................................................................... 28

268CZB................. Authorised officer must produce identity card on request. 29

268CZC................. Officer may apply for warrants by telephone etc.............. 29

268CZD................ Magistrate or tribunal member may grant warrant by telephone etc.        30

268CZE................. Procedure for issuing warrant by telephone etc................ 30

268CZF................. Procedure after telephone warrant ceases or is executed... 31

268CZG................ Form of warrant authorises exercise of power.................. 31

268CZH................ Court to assume that exercise of power not authorised by telephone etc. warrant    32

Division 15—General                                                                                                 33

269........................ Securities.......................................................................... 33

270........................ Reports of absences of crews of vessels........................... 34

271........................ Proof of certain matters..................................................... 35

272........................ Migrant centres................................................................. 38

273........................ Detention centres.............................................................. 39

274........................ Secretary or Australian Border Force Commissioner may issue documents containing information concerning certain persons.................................................................. 40

Part 3—Migration agents and immigration assistance                                  41

Division 1—Preliminary                                                                                            41

275........................ Interpretation..................................................................... 41

276........................ Immigration assistance...................................................... 42

277........................ Immigration legal assistance............................................. 44

278........................ Relation by employment................................................... 46

279........................ Part VIIC of the Crimes Act 1914 to apply to this Part..... 47

Division 2—Restrictions on giving of immigration assistance and making of immigration representations                                                                                                                      48

280........................ Restrictions on giving of immigration assistance.............. 48

281........................ Restriction on charging fees for immigration assistance... 50

282........................ Restriction on charging fees for immigration representations.. 50

283........................ False representation that a person is a registered migration agent             52

284........................ Restriction on self‑advertising of the giving of immigration assistance    52

285........................ Restriction on other advertising of immigration assistance 53

Division 3—Registration of migration agents                                               54

286........................ Individuals may be registered as migration agents............ 54

287........................ Register of Migration Agents........................................... 54

288........................ Application for registration............................................... 55

288A..................... Publishing requirement..................................................... 57

288B...................... Requiring applicants to make statutory declarations or to answer questions            57

289........................ Registration....................................................................... 58

289A..................... Applicant must not be registered if does not satisfy registration requirements         59

290........................ Applicant must not be registered if not a person of integrity or not fit and proper   59

290A..................... Applicant for repeat registration must not be registered if he or she has not done continuing professional development...................................................................... 61

290B...................... Applicant must not be registered if any unpaid registration status charge                61

291........................ Applicant must not be registered if registration refused in past year        61

291A..................... Applicant must not be registered if suspension would be in effect           61

292........................ Applicant must not be registered if registration cancelled in past 5 years 62

292A..................... Applicant must not be registered if any barring period has not ended      62

292B...................... Applicant must not be registered unless he or she holds appropriate professional indemnity insurance  63

293........................ Applicant under 18 must not be registered........................ 63

294........................ Applicant must not be registered if not an Australian citizen, permanent resident or New Zealander with special visa........................................................................ 63

295........................ Notice of refusal of application......................................... 63

299........................ Period of registration........................................................ 64

300........................ Automatic continuation of registration.............................. 64

301........................ Migration Agents Registration Authority must warn of expiry                66

302........................ Automatic deregistration................................................... 66

303........................ Disciplining registered migration agents........................... 66

304........................ Period of suspension........................................................ 67

304A..................... Conditions for lifting cautions.......................................... 68

305........................ Notice of disciplinary decision.......................................... 68

305A..................... Making disciplinary details publicly available................... 68

305B...................... Providing disciplinary details to clients............................. 69

305C...................... Requiring registered migration agents to give information or documents 69

306........................ Review by the Administrative Appeals Tribunal.............. 71

306AA.................. Stay orders........................................................................ 71

Division 3AA—Disciplining registered migration agents for engaging in vexatious activity    72

Subdivision A—Definitions                                                                                    72

306AB................... Definitions........................................................................ 72

Subdivision B—Referral of registered migration agents for disciplinary action         72

306AC................... Minister may refer registered migration agent to the Migration Agents Registration Authority               72

306AD.................. Ministerial determinations................................................. 74

306AE................... Registered migration agent may make submissions.......... 75

306AF................... Notice of referral decision under section 306AC.............. 76

306AG.................. Migration Agents Registration Authority’s decision after a referral under section 306AC      76

306AGAA............ Minister may refer agent again if Migration Agents Registration Authority takes no disciplinary action 78

306AGAB............. Notice of referral decision under section 306AG.............. 80

306AGAC............. Migration Agents Registration Authority’s disciplinary decision after a referral under section 306AGAA.......................................................................................... 80

306AGA............... Cautions or suspensions................................................... 82

Subdivision D—Review                                                                                           82

306AJ.................... Review by the Administrative Appeals Tribunal.............. 82

306AK................... Stay orders........................................................................ 83

Subdivision E—Making disciplinary details available                                  83

306AL................... Making disciplinary details publicly available................... 83

306AM.................. Providing disciplinary details to clients............................. 84

Division 3A—Documents relating to clients of inactive migration agents and deceased migration agents                                                                                                                      85

306A..................... Objects of this Division.................................................... 85

306B...................... Inactive migration agents.................................................. 85

306C...................... Clients............................................................................... 86

306D..................... Power to obtain documents from inactive migration agent 87

306E...................... Power to obtain documents from representative of deceased inactive migration agent             88

306F...................... Power to obtain documents from representative of deceased registered migration agent          89

306G..................... Reasonable compensation................................................. 90

306H..................... Failure to comply with notice............................................ 90

306J....................... Self‑incrimination............................................................. 91

306K...................... Migration Agents Registration Authority to give client documents to clients           91

306L...................... Compensation—constitutional safety‑net.......................... 92

Division 4—Investigations and decision‑making by the Migration Agents Registration Authority       94

308........................ Requiring registered migration agents to give information 94

309........................ Persons may make submissions....................................... 95

310........................ Persons may appear before Migration Agents Registration Authority     95

311........................ Migration Agents Registration Authority not bound by legal forms etc.  96

Division 4A—Disciplining former registered migration agents           97

Subdivision A—Complaints about provision of immigration assistance  97

311A..................... Barring former registered migration agents from being registered for up to 5 years                97

311B...................... Notice of disciplinary decision.......................................... 97

311C...................... Making disciplinary details publicly available................... 98

311D..................... Former registered migration agent may make a submission etc.               99

311E...................... Authority not bound by legal forms etc............................ 99

311EA................... Requiring former registered migration agents to give information or documents     100

311F...................... Review by the Administrative Appeals Tribunal............ 101

Subdivision B—Engaging in vexatious activity                                             101

311G..................... Definitions...................................................................... 101

311H..................... Minister may refer former registered migration agent for disciplinary action           101

311J....................... Former registered migration agent may make submissions 102

311K...................... Notice of referral decision............................................... 103

311L...................... Taking of disciplinary action........................................... 103

311M..................... Review by the Administrative Appeals Tribunal............ 105

311P...................... Making disciplinary details publicly available................. 105

Division 5—Obligations of registered migration agents                        107

312........................ Notification obligations................................................... 107

312A..................... Notification of giving of immigration assistance to visa applicants          108

312B...................... Notification of giving of immigration assistance to review applicants      108

313........................ Persons charged for services to be given detailed statement of services   109

314........................ Code of Conduct for migration agents............................ 110

Division 6—Migration Agents Registration Authority                          111

315........................ Appointing the Migration Institute of Australia Limited as the Migration Agents Registration Authority........................................................................................ 111

316........................ Functions of Migration Agents Registration Authority.. 111

317........................ General powers of the Migration Agents Registration Authority             112

318........................ Power to refer people to mediation................................. 112

319........................ Power to refer lawyers’ conduct to other authorities....... 112

319A..................... Institute may delegate powers and functions................... 113

320........................ Minister may delegate powers and functions.................. 114

321........................ Disclosure of personal information to the Migration Agents Registration Authority               114

321A..................... Disclosure of personal information by the Migration Agents Registration Authority              115

322........................ Annual report.................................................................. 115

Division 6A—Registration application fees and registration status charges      117

332A..................... Collection of registration status charge........................... 117

332B...................... Payments to Migration Institute of Australia Limited..... 117

Division 7—Other things                                                                                        118

332C...................... Removing disciplinary details—registered migration agents 118

332D..................... Removing disciplinary details—former registered migration agents        118

332E...................... Protection from civil proceedings................................... 118

332F...................... Disclosure of personal information by the Secretary...... 120

332G..................... Disclosure of personal information by a review authority 120

332H..................... Giving of notices under this Part.................................... 121

Part 4—Offences relating to decisions under Act                                          123

334........................ Offences in relation to false or misleading statements regarding the making of decisions        123

335........................ Offence of undertaking, for reward, to cause decisions to be made etc.   123

336........................ Court may order reparation for loss suffered.................. 124

Part 4A—Obligations relating to identifying information                        125

Division 1—Preliminary                                                                                          125

336A..................... Definitions...................................................................... 125

336B...................... Application..................................................................... 126

Division 2—Accessing identifying information                                           127

336C...................... Accessing identifying information.................................. 127

336D..................... Authorising access to identifying information................ 127

Division 3—Disclosing identifying information                                          129

336E...................... Disclosing identifying information................................. 129

336F...................... Authorising disclosure of identifying information to foreign countries etc.             132

336FA................... Disclosure of certain personal identifiers to selected individuals              135

336FB................... Disclosure of other relevant information to selected individuals              136

336FC................... Disclosure of certain personal identifiers to the general public 136

336FD................... Disclosure of other relevant information to the general public 138

Division 4—Modifying and impairing identifying information          139

336G..................... Unauthorised modification of identifying information.... 139

336H..................... Unauthorised impairment of identifying information...... 139

336J....................... Meanings of unauthorised modification and unauthorised impairment etc.            139

Division 5—Destroying identifying information                                        141

336K...................... Destroying identifying information................................. 141

336L...................... Identifying information that may be indefinitely retained 142

Part 5—Review of Part 5‑reviewable decisions                                               144

Division 1—Interpretation                                                                                     144

336M..................... Simplified outline of this Part......................................... 144

336N..................... Scope of this Part............................................................ 145

337........................ Interpretation................................................................... 145

Division 2—Part 5‑reviewable decisions                                                        147

338........................ Definition of Part 5‑reviewable decision........................ 147

339........................ Conclusive certificates.................................................... 150

Division 3—Part 5‑reviewable decisions: Tribunal review                  151

347........................ Application for review of Part 5‑reviewable decisions... 151

348........................ Tribunal to review Part 5‑reviewable decisions.............. 152

349........................ Tribunal powers on review of Part 5‑reviewable decisions 153

350........................ Review of assessments made under section 93............... 153

351........................ Minister may substitute more favourable decision.......... 154

352........................ Tribunal to notify Secretary of application for review of Part 5‑reviewable decisions             155

Division 4—Part 5‑reviewable decisions: Tribunal powers                 157

353........................ Tribunal’s way of operating............................................ 157

353B...................... Guidance decisions......................................................... 157

Division 5—Part 5‑reviewable decisions: conduct of review              158

357A..................... Exhaustive statement of natural justice hearing rule........ 158

358........................ Documents to be given to the Tribunal........................... 158

359........................ Tribunal may seek information....................................... 158

359AA.................. Information and invitation given orally by Tribunal while applicant appearing        159

359A..................... Information and invitation given in writing by Tribunal. 160

359B...................... Requirements for written invitation etc........................... 161

359C...................... Failure to give information, comments or response in response to written invitation               162

360........................ Tribunal must invite applicant to appear.......................... 162

360A..................... Notice of invitation to appear.......................................... 163

361........................ Applicant may request Tribunal to call witness and obtain written material             163

362........................ Certain bridging visa decisions—request to call witnesses 164

362A..................... Applicant entitled to have access to written material before Tribunal       165

362B...................... Failure of applicant to appear before Tribunal................. 165

362C...................... Failure to appear—Tribunal’s decisions, written statements and notifying the applicant          167

363........................ Powers of the Tribunal etc.............................................. 169

363A..................... Tribunal does not have power to permit a person to do something he or she is not entitled to do            169

364........................ Tribunal’s power to take evidence.................................. 170

365........................ Review to be in public.................................................... 170

366........................ Oral evidence by telephone etc........................................ 171

366A..................... Applicant may be assisted by another person while appearing before Tribunal       171

366B...................... Other persons not to be assisted or represented while appearing before Tribunal    172

366C...................... Interpreters...................................................................... 172

366D..................... Examination and cross‑examination not permitted.......... 173

367........................ Certain bridging visa decisions—to be made within prescribed period    173

Division 6—Part 5‑reviewable decisions: Tribunal decisions             174

368........................ Tribunal’s decision and written statement....................... 174

368A..................... Notifying parties of Tribunal’s decision (decision not given orally)        175

368D..................... Tribunal’s decisions given orally.................................... 176

Division 7—Part 5‑reviewable decisions: offences                                   179

370........................ Failure to comply with summons.................................... 179

371........................ Refusal to be sworn or to answer questions................... 179

Division 8—Part 5‑reviewable decisions: miscellaneous                       181

375........................ Restrictions on disclosure of certain information etc....... 181

375A..................... Certain information only to be disclosed to Tribunal...... 181

376........................ Tribunal’s discretion in relation to disclosure of certain information etc. 182

378........................ Tribunal may restrict publication of certain matters......... 183

Division 8A—Part 5‑reviewable decisions: giving and receiving documents     184

379AA.................. Giving documents by Tribunal where no requirement to do so by section 379A or 379B method          184

379A..................... Methods by which Tribunal gives documents to a person other than the Secretary 185

379B...................... Methods by which Tribunal gives documents to the Secretary                187

379C...................... When a person other than the Secretary is taken to have received a document from the Tribunal            188

379D..................... When the Secretary is taken to have received a document from the Tribunal           190

379EA................... Giving documents by Tribunal—combined applications 190

379F...................... Giving documents etc. to the Tribunal............................ 191

379G..................... Authorised recipient........................................................ 191

Part 7—Review of Part 7‑reviewable decisions                                               193

Division 1—Interpretation                                                                                     193

408........................ Simplified outline of this Part......................................... 193

409........................ Scope of this Part............................................................ 194

410........................ Interpretation................................................................... 194

Division 2—Part 7‑reviewable decisions                                                        195

411........................ Definition of Part 7‑reviewable decision........................ 195

412........................ Application for review of Part 7‑reviewable decisions... 196

414........................ Tribunal to review Part 7‑reviewable decisions.............. 197

415........................ Tribunal powers on review of Part 7‑reviewable decisions 197

416........................ Multiple review applications—consideration of information 198

417........................ Minister may substitute more favourable decision.......... 198

418........................ Tribunal to notify Secretary of application for review of Part 7‑reviewable decisions             200

Division 3—Part 7‑reviewable decisions: Tribunal powers                 201

420........................ Tribunal’s way of operating............................................ 201

420B...................... Guidance decisions......................................................... 201

Division 4—Part 7‑reviewable decisions: conduct of review              202

422B...................... Exhaustive statement of natural justice hearing rule........ 202

423........................ Documents to be given to the Tribunal........................... 202

423A..................... How Tribunal is to deal with new claims or evidence..... 202

424........................ Tribunal may seek information....................................... 203

424AA.................. Information and invitation given orally by Tribunal while applicant appearing        203

424A..................... Information and invitation given in writing by Tribunal. 204

424B...................... Requirements for written invitation etc........................... 205

424C...................... Failure to give information, comments or response in response to written invitation               206

425........................ Tribunal must invite applicant to appear.......................... 207

425A..................... Notice of invitation to appear.......................................... 207

426........................ Applicant may request Tribunal to call witnesses........... 207

426A..................... Failure of applicant to appear before Tribunal................. 208

426B...................... Failure to appear—Tribunal’s decisions, written statements and notifying the applicant          210

427........................ Powers of the Tribunal etc.............................................. 212

428........................ Tribunal’s power to take evidence.................................. 213

429........................ Review to be in private................................................... 213

429A..................... Oral evidence by telephone etc........................................ 214

Division 5—Part 7‑reviewable decisions: Tribunal decisions             215

430........................ Tribunal’s decision and written statement....................... 215

430A..................... Notifying parties of Tribunal’s decision (decision not given orally)        216

430D..................... Tribunal’s decision given orally...................................... 217

431........................ Identifying information not to be published.................... 219

Division 6—Part 7‑reviewable decisions: offences                                   220

432........................ Failure to comply with summons.................................... 220

433........................ Refusal to be sworn or to answer questions................... 220

Division 7—Part 7‑reviewable decisions: miscellaneous                       222

437........................ Restrictions on disclosure of certain information etc....... 222

438........................ Tribunal’s discretion in relation to disclosure of certain information etc. 222

440........................ Tribunal may restrict publication or disclosure of certain matters             223

Division 7A—Review of Part 7‑reviewable decisions: giving and receiving documents              225

441AA.................. Giving documents by Tribunal where no requirement to do so by section 441A or 441B method          225

441A..................... Methods by which Tribunal gives documents to a person other than the Secretary 226

441B...................... Methods by which Tribunal gives documents to the Secretary                228

441C...................... When a person other than the Secretary is taken to have received a document from the Tribunal            229

441D..................... When the Secretary is taken to have received a document from the Tribunal           231

441EA................... Giving documents by Tribunal—combined applications 231

441F...................... Giving documents etc. to the Tribunal............................ 232

441G..................... Authorised recipient........................................................ 232

Part 7AA—Fast track review process in relation to certain protection visa decisions     234

Division 1—Introduction                                                                                        234

473BA................... Simplified outline of this Part......................................... 234

473BB................... Definitions...................................................................... 235

473BC................... Minister may determine that certain decisions are to be reviewed under this Part    236

473BD................... Minister may issue conclusive certificate in relation to certain decisions  237

Division 2—Referral of fast track reviewable decisions to Immigration Assessment Authority             238

473CA................... Referral of fast track reviewable decisions...................... 238

473CB................... Material to be provided to Immigration Assessment Authority                238

473CC................... Review of decision......................................................... 239

Division 3—Conduct of review                                                                            240

Subdivision A—Natural justice requirements                                                 240

473DA.................. Exhaustive statement of natural justice hearing rule........ 240

Subdivision B—Review on the papers                                                               240

473DB................... Immigration Assessment Authority to review decisions on the papers    240

Subdivision C—Additional information                                                          241

473DC................... Getting new information................................................. 241

473DD.................. Considering new information in exceptional circumstances 241

473DE................... Certain new information must be given to referred applicant 242

473DF................... Invitation to give new information or comments in writing or at interview              243

Division 4—Decisions of Immigration Assessment Authority            244

473EA................... Immigration Assessment Authority’s decision and written statement      244

473EB................... Notification of Immigration Assessment Authority’s decision                245

473EC................... Certain decisions of the Immigration Assessment Authority to be published          245

Division 5—Exercise of powers and functions by Immigration Assessment Authority                247

473FA................... How Immigration Assessment Authority is to exercise its functions       247

473FB................... Practice directions........................................................... 247

473FC................... Guidance decisions......................................................... 248

Division 6—Disclosure of information                                                            249

473GA.................. Restrictions on disclosure of certain information etc....... 249

473GB................... Immigration Assessment Authority’s discretion in relation to disclosure of certain information etc.       249

473GC................... Disclosure of confidential information............................ 250

473GD.................. Immigration Assessment Authority may restrict publication or disclosure of certain matters  252

Division 7—Giving and receiving review documents etc.                     254

473HA.................. Giving documents by Immigration Assessment Authority where no requirement to do so by section 473HB or 473HC method............................................................... 254

473HB................... Methods by which Immigration Assessment Authority gives documents to a person other than the Secretary........................................................................................ 255

473HC................... Methods by which Immigration Assessment Authority gives documents to the Secretary      257

473HD.................. When a person other than the Secretary is taken to have received a document from the Immigration Assessment Authority.................................................... 258

473HE................... When the Secretary is taken to have received a document from the Immigration Assessment Authority 260

473HF................... Giving documents etc. to the Immigration Assessment Authority           261

473HG.................. Authorised recipient........................................................ 261

Division 8—The Immigration Assessment Authority                              263

473JA.................... The Immigration Assessment Authority......................... 263

473JB.................... Administrative arrangements.......................................... 263

473JC.................... Appointment of Senior Reviewer................................... 264

473JD.................... Acting Senior Reviewer.................................................. 264

473JE.................... Staff................................................................................ 264

473JF.................... Delegation....................................................................... 264

Part 8—Judicial review                                                                                                  265

Division 1—Privative clause                                                                                 265

474........................ Decisions under Act are final.......................................... 265

Division 2—Jurisdiction and procedure of courts                                    268

474A..................... Definition of AAT Act migration decision....................... 268

475........................ This Division not to limit section 474............................. 269

476........................ Jurisdiction of the Federal Circuit Court......................... 269

476A..................... Limited jurisdiction of the Federal Court........................ 270

476B...................... Remittal by the High Court............................................. 272

477........................ Time limits on applications to the Federal Circuit Court. 272

477A..................... Time limits on applications to the Federal Court............. 273

478........................ Persons who may make application................................ 274

479........................ Parties to review............................................................. 275

480........................ Intervention by Attorney‑General................................... 275

481........................ Operation etc. of decision............................................... 275

482........................ Changing person holding, or performing the duties of, an office             276

484........................ Exclusive jurisdiction of High Court, Federal Court and Federal Circuit Court       276

Part 8A—Restrictions on court proceedings                                                     277

486A..................... Time limit on applications to the High Court for judicial review              277

486AA.................. Intervention by Attorney‑General................................... 278

486AB................... Operation etc. of decision............................................... 278

486B...................... Multiple parties in migration litigation............................ 278

486C...................... Persons who may commence or continue proceedings in the Federal Circuit Court or the Federal Court........................................................................................ 280

486D..................... Disclosing other judicial review proceedings.................. 281

Part 8B—Costs orders where proceedings have no reasonable prospect of success        283

486E...................... Obligation where there is no reasonable prospect of success 283

486F...................... Cost orders..................................................................... 283

486G..................... Person must be given reasonable opportunity to argue against costs order              284

486H..................... Limited waiver of legal professional privilege................ 285

486I....................... Lawyer’s certification..................................................... 285

486J....................... Part does not limit other powers to order costs against third parties         286

486K...................... Definitions...................................................................... 286

Part 8C—Reports on persons in detention for more than 2 years      287

486L...................... What is the detention reporting start time for a person?. 287

486M..................... What is a detention reporting time for a person?............ 287

486N..................... Secretary’s obligation to report to Commonwealth Ombudsman             287

486O..................... Commonwealth Ombudsman to give Minister assessment of detention arrangements            288

486P...................... Minister to table statement from Commonwealth Ombudsman                289

486Q..................... Application of Ombudsman Act 1976............................ 289

Part 8D—Civil penalties                                                                                                 290

Division 1—Obtaining a civil penalty order                                                 290

486R...................... Civil penalty orders......................................................... 290

486S...................... Additional rules relating to the sponsorship civil penalty provisions       291

486T...................... Civil enforcement of penalty........................................... 292

486U..................... Conduct contravening more than one civil penalty provision 292

486V..................... Multiple contraventions.................................................. 293

486W..................... Proceedings may be heard together................................. 293

486X..................... Civil evidence and procedure rules for civil penalty orders 293

486Y..................... Requirement for persons to assist in applications for civil penalty orders                293

Division 2—Civil proceedings and criminal proceedings                      295

486Z...................... Civil proceedings after criminal proceedings.................. 295

486ZA................... Criminal proceedings during civil proceedings............... 295

486ZB................... Criminal proceedings after civil proceedings.................. 295

486ZC................... Evidence given in civil proceedings not admissible in criminal proceedings            296

Division 3—Miscellaneous                                                                                     297

486ZD................... Ancillary contravention of civil penalty provisions......... 297

486ZE.................... Mistake of fact................................................................ 297

486ZF.................... State of mind................................................................... 298

486ZG................... Civil double jeopardy...................................................... 298

Part 8E—Investigation powers relating to certain offences and provisions           299

Division 1—Preliminary                                                                                          299

487A..................... Definitions...................................................................... 299

Division 2—Requiring persons to give information or produce documents        302

487B...................... Secretary or Australian Border Force Commissioner may require a person to give information or produce a document........................................................................ 302

487C...................... Self‑incrimination........................................................... 303

Division 3—Search warrants                                                                               304

Subdivision A—Search powers                                                                           304

487D..................... Authorised officer may enter premises by consent or under a search warrant          304

487E...................... Search powers of authorised officers.............................. 304

487F...................... Powers relating to electronic equipment.......................... 305

487G..................... Seizing evidence of the contravention of related provisions etc.               306

487H..................... Persons assisting authorised officers.............................. 307

487J....................... Use of force in executing a search warrant..................... 308

Subdivision B—Powers of authorised officers to ask questions and seek production of documents        308

487K...................... Authorised officer may ask questions and seek production of documents               308

Subdivision C—Obligations and incidental powers of authorised officers 309

487L...................... Consent........................................................................... 309

487M..................... Announcement before entry under search warrant.......... 309

487N..................... Authorised officer to be in possession of search warrant 310

487P...................... Details of search warrant etc. to be given to occupier..... 310

487Q..................... Completing execution of search warrant after temporary cessation          311

487R...................... Completing execution of search warrant stopped by court order              312

487S...................... Expert assistance to operate electronic equipment........... 313

487T...................... Compensation for damage to electronic equipment......... 314

Subdivision D—Occupier’s rights and responsibilities                                 315

487U..................... Occupier entitled to observe execution of search warrant 315

487V..................... Occupier to provide authorised officer with facilities and assistance        315

Subdivision E—General provisions relating to seizure                               316

487W..................... Copies of seized things to be provided........................... 316

487X..................... Receipts for seized things............................................... 317

487Y..................... Return of seized things................................................... 317

487Z...................... Issuing officer may permit a seized thing to be retained.. 318

487ZA................... Disposal of seized things................................................ 319

487ZB................... Compensation for acquisition of property....................... 319

Subdivision F—Issue of search warrants                                                         320

487ZC................... Issue of search warrants................................................. 320

487ZD................... Search warrants by telephone, fax etc............................. 321

487ZE.................... Authority of search warrant............................................ 323

487ZF.................... Offence relating to search warrants by telephone, fax etc. 323

Subdivision G—Identity cards                                                                            324

487ZG................... Identity cards.................................................................. 324

Subdivision H—Powers of issuing officers                                                      325

487ZH................... Powers of issuing officers.............................................. 325

Part 9—Miscellaneous                                                                                                     326

Division 1—Bogus documents                                                                              326

487ZI..................... Prohibition on, and forfeiture of, bogus documents........ 326

487ZJ.................... Seizure of bogus documents........................................... 326

487ZK................... Document condemned as forfeited.................................. 327

487ZL.................... Dealing with a document after it is condemned as forfeited 328

Division 2—Other                                                                                                       329

487........................ Liability for identification tests........................................ 329

488........................ Tampering with movements records............................... 329

488A..................... Giving information to other relevant agencies................. 331

488AA.................. Things seized under Crimes Act search warrant and information about such things                331

488B...................... Authorisation to disclose information to an officer......... 332

489........................ Notified data bases.......................................................... 333

490........................ Identification card to be deemed to continue to be in a form approved by the Minister            334

492........................ Commencement of prosecutions..................................... 334

493........................ Conduct of directors, employees and agents................... 334

494........................ Jurisdiction of courts...................................................... 336

494AA.................. Bar on certain legal proceedings relating to unauthorised maritime arrivals             337

494AB................... Bar on certain legal proceedings relating to transitory persons 338

494A..................... Giving documents by Minister where no requirement to do so by section 494B method        339

494B...................... Methods by which Minister gives documents to a person 340

494C...................... When a person is taken to have received a document from the Minister  342

494D..................... Authorised recipient........................................................ 344

495........................ Minister may approve forms........................................... 345

495A..................... Minister may arrange for use of computer programs to make decisions etc.            345

495B...................... Minister may substitute more favourable decisions for certain computer‑based decisions       346

496........................ Delegation....................................................................... 347

497........................ Delegate not required to perform certain administrative tasks  347

498........................ Exercise of powers under Act......................................... 348

499........................ Minister may give directions........................................... 348

500........................ Review of decision......................................................... 349

500A..................... Refusal or cancellation of temporary safe haven visas.... 355

501........................ Refusal or cancellation of visa on character grounds...... 359

501A..................... Refusal or cancellation of visa—setting aside and substitution of non‑adverse decision under subsection 501(1) or (2)................................................. 364

501B...................... Refusal or cancellation of visa—setting aside and substitution of adverse decision under subsection 501(1) or (2)................................................................................... 366

501BA................... Cancellation of visa—setting aside and substitution of non‑adverse decision under section 501CA       367

501C...................... Refusal or cancellation of visa—revocation of decision under subsection 501(3) or 501A(3) 368

501CA................... Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)................................................................. 370

501D..................... Refusal or cancellation of visa—method of satisfying Minister that person passes the character test      371

501E...................... Refusal or cancellation of visa—prohibition on applying for other visas 372

501F...................... Refusal or cancellation of visa—refusal of other visa applications and cancellation of other visas          373

501G..................... Refusal or cancellation of visa—notification of decision 374

501H..................... Refusal or cancellation of visa—miscellaneous provisions 375

501HA.................. Application of sections 501 to 501H to transitional (permanent) visas and transitional (temporary) visas........................................................................................ 376

501J....................... Refusal or cancellation of protection visa—Minister may substitute more favourable decision               376

501K...................... Identity of applicants for protection visas not to be published by the Administrative Appeals Tribunal  377

501L...................... Disclosure of information to the Minister....................... 378

502........................ Minister may decide in the national interest that certain persons are to be excluded persons    380

503........................ Exclusion of certain persons from Australia................... 381

503A..................... Protection of information supplied by law enforcement agencies or intelligence agencies       381

503B...................... Protection of confidential information disclosed to Federal Court or Federal Circuit Court—permanent non‑disclosure orders..................................................... 386

503C...................... Protection of confidential information disclosed to Federal Court or Federal Circuit Court—interim non‑disclosure orders..................................................... 391

503D..................... Details of gazetted agency to be treated as protected information             393

503E...................... Validation of decisions................................................... 394

504........................ Regulations..................................................................... 395

505........................ Regulations about visa criteria........................................ 398

506........................ Regulations about passenger cards................................. 399

506A..................... Regulations may provide for infringement notices.......... 399

506B...................... Tax file numbers............................................................. 400

507........................ Marital or relationship status........................................... 401

The Schedule—Acts relating to immigration and deportation repealed 403

Endnotes                                                                                                                                  404

Endnote 1—About the endnotes                                                                          404

Endnote 2—Abbreviation key                                                                              406

Endnote 3—Legislation history                                                                           407

Endnote 4—Amendment history                                                                         441

Endnote 5—Miscellaneous                                                                                     522


Part 2Arrival, presence and departure of persons

Division 14Recovery of costs from certain persons

262  Liability to the Commonwealth for the cost of keeping, maintaining and removing certain persons

             (1)  A person who:

                     (a)  is, or has been, detained under section 189; and

                     (b)  was on board a vessel (not being an aircraft) when it was used in connection with the commission of an offence against this Act or against a prescribed law in force in the Commonwealth or in a State or Territory, being a law relating to the control of fishing; and

                   (ba)  is convicted of the offence;

and the master, owner, agent and charterer of the vessel on which the person travelled to Australia, are, jointly and severally, liable to pay the Commonwealth:

                     (c)  the amount applicable to the person under subsection (2) for the cost of keeping and maintaining the person while the person is in immigration detention; and

                     (d)  the cost of transporting the person, and a person holding the person, from the vessel to the place of immigration detention; and

                     (e)  the cost of transporting the person, and a person holding the person, between places of immigration detention; and

                      (f)  if the person is returned to the vessel or another vessel—the cost of transporting the person, and a person holding the person, from the place of immigration detention to the vessel or that other vessel; and

                     (g)  if the person is, or is to be, removed from Australia at the expense of the Commonwealth—the cost of that removal (including the cost of transporting a person holding the person).

             (2)  The Minister may, by legislative instrument, determine a daily amount for the keeping and maintaining of a person in immigration detention at a specified place in a specified period.

             (3)  An amount determined under subsection (2) is to be no more than the cost to the Commonwealth of detaining a person at that place in that period.

             (4)  To avoid doubt, the liability to pay the Commonwealth an amount under subsection (1) may be enforced:

                     (a)  at the time the person is convicted of an offence mentioned in paragraph (1)(b); or

                     (b)  after the person has served the whole or a part of any sentence imposed upon the person because of his or her conviction of an offence mentioned in paragraph (1)(b).

263  Secretary or Australian Border Force Commissioner able to issue notice of debt

                   If:

                     (a)  a person is liable to pay to the Commonwealth an amount under section 262; and

                     (b)  the Secretary or Australian Border Force Commissioner gives written notice to the person giving particulars of the liability and stating that the Secretary or Australian Border Force Commissioner requires payment of a specified amount not exceeding that amount;

the specified amount is a debt recoverable by the Commonwealth from the person:

                     (c)  in a court of competent jurisdiction; or

                     (d)  by garnishee notice under section 264.

264  Garnishee notice

             (1)  If an amount (debt) is a debt recoverable from a person (debtor) by the Commonwealth under section 263 or 265, the Secretary or Australian Border Force Commissioner may by written notice given to another person:

                     (a)  from whom any money is due or accruing, or may become due, to the debtor; or

                     (b)  who holds, or may later hold, money for or on account of the debtor; or

                     (c)  who holds, or may later hold, money on account of some other person for payment to the debtor; or

                     (d)  who has authority from some other person to pay money to the debtor;

require the person to whom the notice is given to pay to the Commonwealth:

                     (e)  an amount specified in the notice, not exceeding the debt or the amount of the relevant money; or

                      (f)  such amount as is specified in the notice out of each payment that the person becomes liable from time to time to make to the debtor until that debt is paid.

             (2)  The time for making a payment in compliance with a notice under subsection (1) is such time as is specified in it, not being a time before:

                     (a)  the relevant money becomes due or is held; or

                     (b)  the end of the period of 14 days after the notice is given.

             (3)  If the debtor is in Australia when the Secretary or Australian Border Force Commissioner gives the notice, the Secretary or Australian Border Force Commissioner must give a copy of the notice to the debtor.

             (4)  A person who makes a payment to the Commonwealth in compliance with the notice is taken to have made the payment under the authority of the person who owes the debt to the Commonwealth and of any other person concerned.

             (5)  If, after the notice is given to a person, an amount is paid by another person in reduction or satisfaction of the debt, the Secretary or Australian Border Force Commissioner must notify the person given the notice accordingly, and the amount specified in the notice is taken to be reduced by the amount paid.

             (6)  If money is not due, or repayable, to a person on demand unless a condition is fulfilled, the money is taken, for the purposes of this section, to be due or repayable on demand, even though the condition has not been fulfilled.

265  Debt from failure to comply with garnishee notice

             (1)  If a person (garnishee debtor):

                     (a)  is given a notice under section 264 in respect of a debt; and

                     (b)  fails to comply with the notice to the extent that the garnishee debtor is capable of complying with it;

then the amount of the debt outstanding is recoverable from the garnishee debtor by the Commonwealth by:

                     (c)  legal proceedings in a court of competent jurisdiction; or

                     (d)  a garnishee notice under section 264.

             (2)  The reference in subsection (1) to the amount of the debt outstanding is a reference to whichever is the lesser of:

                     (a)  as much of the amount required by the notice under section 264 to be paid by the garnishee debtor as the garnishee debtor was able to pay; or

                     (b)  as much of the debt due at the time when the notice was given as remains due from time to time.

             (3)  If the Commonwealth recovers:

                     (a)  the whole or a part of the debt due by the garnishee debtor; or

                     (b)  the whole or a part of the debt due by the debtor (within the meaning of section 264);

then:

                     (c)  both debts are reduced by the amount that the Commonwealth has so recovered; and

                     (d)  the amount specified in the notice under section 264 is taken to be reduced by the amount so recovered.

266  Future debts

                   For the purposes of this Division, an amount is a future debt in relation to a person if the Secretary or Australian Border Force Commissioner believes on reasonable grounds that the person will, under section 262, become liable to pay the amount to the Commonwealth.

267  Secretary or Australian Border Force Commissioner may freeze amounts to secure future debts

             (1)  If there is a future debt in relation to a person (future debtor), the Secretary or Australian Border Force Commissioner may by written notice given to another person:

                     (a)  from whom any money is due or accruing, or may become due, to the future debtor; or

                     (b)  who holds, or may later hold, money for or on account of the future debtor; or

                     (c)  who holds, or may later hold, money on account of some other person for payment to the future debtor; or

                     (d)  who has authority from some other person to pay money to the future debtor;

require the other person to retain for the period, not exceeding 28 days, specified in that notice:

                     (e)  an amount specified in the notice, not exceeding the future debt or the amount of the relevant money; or

                      (f)  such amount as is specified in the notice out of each payment that the person becomes liable from time to time to make to the future debtor until that debt is paid.

             (2)  If the future debtor is in Australia when the Secretary or Australian Border Force Commissioner gives the notice, the Secretary or Australian Border Force Commissioner must give a copy of the notice to the future debtor.

             (3)  If, after the notice is given to a person, an amount is paid by another person in respect of the future debt, the Secretary or Australian Border Force Commissioner must notify the person given the notice accordingly, and the amount specified in the notice is taken to be reduced by the amount paid.

             (4)  If money is not due, or repayable, to a person on demand unless a condition is fulfilled, the money is taken, for the purposes of this section, to be due or repayable on demand even though the condition has not been fulfilled.

268  Application of Division to the Crown

             (1)  This Division binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.

             (2)  For the purposes of this Division, a notice may be given to the Commonwealth, a State or Territory by giving it to a person employed by the Commonwealth, State or Territory, respectively, being a person who, under a law of the Commonwealth, State or Territory, respectively, has a duty of disbursing public money, and a notice so given is taken, for the purposes of this section, to have been given to the Commonwealth, the State or the Territory, as the case may be.

Division 14AMonitoring compliance with student visa conditions

Subdivision APreliminary

268AA  Definitions

                   In this Division:

attendance notice means a notice given under section 268BD.

document includes copy of a document.

education provider means an institution or other body or person in Australia that provides, has provided or seeks to provide courses of education or of training to persons who hold student visas.

monitoring warrant means a warrant issued under section 268CE or 268CZD.

occupier:

                     (a)  in relation to premises comprising a vehicle or vessel—means the person apparently in charge of the vehicle or vessel; and

                     (b)  in any case—includes a person who apparently represents the occupier.

premises means:

                     (a)  an area of land or any other place, whether or not it is enclosed or built on; or

                     (b)  a building or other structure; or

                     (c)  a vehicle or vessel;

and includes a part of any such premises.

production notice means a notice given under section 268BA.

tribunal member means a member of the Administrative Appeals Tribunal.

visa monitoring purpose means a purpose of determining whether the conditions of a particular student visa or visas, or of student visas generally, are being or have been complied with.

268AB  Division binds the Crown

             (1)  This Division binds the Crown in each of its capacities.

             (2)  However, nothing in this Division makes the Crown in any capacity liable to be prosecuted for an offence.

268AD  Powers conferred on magistrates in their personal capacity

             (1)  A power conferred on a magistrate by section 268BQ, 268CE, 268CU or 268CZD is conferred on the magistrate in a personal capacity and not as a court or a member of a court.

             (2)  The magistrate need not accept the power conferred.

             (3)  A magistrate exercising a power mentioned in subsection (1) has the same protection and immunity as if he or she were exercising that power as, or as a member of, the court of which the magistrate is a member.

Subdivision BNotices requiring information and documents

268BA  Production notices

             (1)  This section applies if the Secretary or Australian Border Force Commissioner reasonably believes that an individual specified in subsection (4) has, or has access to, information or documents that are relevant to a visa monitoring purpose.

             (2)  The Secretary or Australian Border Force Commissioner may give the individual a written notice requiring him or her to:

                     (a)  give any information or documents relevant to the visa monitoring purpose to an authorised officer; or

                     (b)  show any such documents to an authorised officer; or

                     (c)  make copies of any such documents and give the copies to an authorised officer.

Note:          The Secretary or Australian Border Force Commissioner may also give the individual an attendance notice: see section 268BD.

             (3)  If the information or documents are in a particular form then the production notice may require the information or documents to be given in that form.

             (4)  The individuals who may be given a production notice are:

                     (a)  an officer or employee of an education provider; or

                     (b)  a consultant to an education provider; or

                     (c)  a partner in an education provider; or

                     (d)  an individual trading as an education provider.

             (5)  A production notice under this section may be given even if any relevant student visa is no longer in effect or the holder of any such visa is no longer enrolled in a course provided by the education provider.

268BB  Contents of the production notice

             (1)  A production notice must:

                     (a)  state that it is given under section 268BA; and

                     (b)  set out the effects of sections 268BH, 268BI and 268BJ; and

                     (c)  state how and by when the information or documents must be given or shown.

             (2)  In so far as the notice covers information or documents:

                     (a)  that relate to any extent to the calendar year in which the notice is given; and

                     (b)  that are required to be given or shown on the premises where they are currently located;

the time mentioned in paragraph (1)(c) must be at least 24 hours after the notice is given.

             (3)  In so far as the notice covers any other information or documents, the time mentioned in paragraph (1)(c) must be at least 72 hours after the notice is given.

268BC  Serving production notices

             (1)  The Secretary or Australian Border Force Commissioner must give a production notice to an individual:

                     (a)  by delivering it to the individual personally; or

                     (b)  by:

                              (i)  leaving it at the address of the individual’s place of residence or business last known to the Secretary or Australian Border Force Commissioner; and

                             (ii)  taking reasonably practicable action to draw the individual’s attention to the notice; or

                     (c)  by sending it by ordinary or any other class of pre‑paid post to the individual’s place of residence or business last known to the Secretary or Australian Border Force Commissioner.

             (2)  However, if the Secretary or Australian Border Force Commissioner uses the method in paragraph (1)(c), the time mentioned in paragraph 268BB(1)(c) must be at least 14 days after the notice is given (instead of at least 24 hours or 72 hours).

Note:          Section 29 of the Acts Interpretation Act 1901 sets out when the notice is taken to have been given if the notice is posted to the individual.

268BD  Attendance notices

             (1)  This section applies if the Secretary or Australian Border Force Commissioner reasonably believes that an individual specified in subsection (3) has, or has access to, information or documents that are relevant to a visa monitoring purpose.

             (2)  The Secretary or Australian Border Force Commissioner may give the individual written notice requiring the individual to attend before an authorised officer and answer questions about the matter.

Note:          The Secretary or Australian Border Force Commissioner may also give the individual a production notice: see section 268BA.

             (3)  The individuals who may be given an attendance notice are:

                     (a)  an officer or employee of an education provider; or

                     (b)  a consultant to an education provider; or

                     (c)  a partner in an education provider; or

                     (d)  an individual trading as an education provider.

             (4)  An attendance notice under this section may be given even if any relevant student visa is no longer in effect or the holder of any such visa is no longer enrolled in a course provided by the education provider.

268BE  Contents of attendance notice

             (1)  An attendance notice must:

                     (a)  state that it is given under section 268BD; and

                     (b)  set out the effects of sections 268BH, 268BI and 268BJ; and

                     (c)  state where and when the individual is to attend.

The time mentioned in paragraph (c) must be at least 14 days after the notice is given.

             (2)  An attendance notice may be included in the same document as a production notice, if the notices are being given to the same individual.

268BF  Scales of expenses

                   The regulations may prescribe scales of expenses to be allowed to persons required to give information or documents under this Subdivision.

268BG  Reasonable compensation for giving copies

                   A person is entitled to be paid by the Commonwealth reasonable compensation for complying with a requirement covered by paragraph 268BA(2)(c) (copies of documents given under production notices).

268BH  Offence: failing to comply with a notice

             (1)  A person who refuses or fails to comply with a production or attendance notice commits an offence.

Penalty:  Imprisonment for 6 months.

             (2)  However, a person does not commit an offence in relation to a production notice if the person complied with the notice to the extent that it was practicable to do so within the period allowed by the notice.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.

             (3)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

268BI  Offence: giving false or misleading information

                   A person who gives false or misleading information in the course of complying or purporting to comply with a production or attendance notice commits an offence.

Penalty:  Imprisonment for 12 months.

268BJ  Offence: giving false or misleading document

             (1)  A person who gives or shows a document that is false or misleading in a material particular, in the course of complying or purporting to comply with a production or attendance notice, commits an offence.

Penalty:  Imprisonment for 12 months.

             (2)  However, the person does not commit the offence if the document is accompanied by a written statement signed by the person:

                     (a)  stating that the document is, to the person’s knowledge, false or misleading in the material particular concerned; and

                     (b)  setting out or referring to the material particular.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.

268BK  Information and documents that incriminate a person

             (1)  A person is not excused from the requirement to comply with a production or attendance notice on the ground that doing so might tend to incriminate the person or expose the person to a penalty.

             (2)  However, if the person is an individual:

                     (a)  the information, document or answer to the question; or

                     (b)  any other information, document or thing obtained as a direct or indirect result of complying with a notice;

is not admissible in evidence against the individual in any criminal proceedings other than proceedings under, or arising out of, section 268BI or 268BJ.

268BL  Copies of documents

                   An authorised officer, or another officer with an authorised officer’s permission, may:

                     (a)  inspect a document given or shown to the authorised officer under this Subdivision; and

                     (b)  make and retain copies of, or take and retain extracts from, such a document; and

                     (c)  retain a copy of a document given to the authorised officer in accordance with a requirement covered by paragraph 268BA(2)(c) (copies of documents given under production notices).

268BM  Officer may retain documents

             (1)  An authorised officer, or another officer with an authorised officer’s permission, may retain a document given to the authorised officer under this Subdivision:

                     (a)  for the purposes of this Act; or

                     (b)  for the purposes of an investigation as to whether an offence has been committed; or

                     (c)  to enable evidence of an offence to be secured for the purposes of a prosecution.

             (2)  However, the document must not be retained for longer than 60 days after the authorised officer was given the document.

Note:          The authorised officer may apply to retain the document for a further period: see section 268BP.

268BN  Owner of document must be given copy

             (1)  If an officer retains a document under section 268BM, then the Secretary or Australian Border Force Commissioner must as soon as practicable:

                     (a)  certify a copy of the document to be a true copy; and

                     (b)  give the copy to the person (the owner) otherwise entitled to possession of the document.

             (2)  The certified copy must be received in all courts and tribunals as evidence as if it had been the original.

             (3)  Until the certified copy is given, the owner, or a person authorised by the owner, may inspect and make copies of, or take and retain extracts from, the original document at the times and places that the Secretary or Australian Border Force Commissioner thinks appropriate.

268BO  Retaining documents

             (1)  This section applies 60 days after a document is given to an authorised officer under this Subdivision.

             (2)  The authorised officer must take reasonable steps to return the document to the person who gave the officer the document or to the owner if that person is not entitled to possess it.

             (3)  However, the authorised officer does not have to take those steps if:

                     (a)  the authorised officer may retain the document because of an order under section 268BQ; or

                     (b)  the authorised officer is otherwise authorised (by a law, or an order of a court, of the Commonwealth or a State) to retain, destroy or dispose of the document.

268BP  Officer may apply to magistrate or tribunal member for a further period

             (1)  An authorised officer given a document under this Subdivision, or another officer who is currently retaining such a document, may apply to a magistrate or tribunal member for an order that the officer may retain the document for a further period.

             (2)  The application must be made before the end of:

                     (a)  60 days after the document was given to the authorised officer; or

                     (b)  a period previously specified in an order of a magistrate or tribunal member under section 268BQ.

             (3)  Before making the application, the officer must:

                     (a)  take reasonable steps to discover which persons’ interests would be affected by the retention of the document; and

                     (b)  if it is practicable to do so, notify each person who the officer believes to be such a person of the proposed application.

268BQ  Magistrate or tribunal member may order retention for further period

             (1)  The magistrate or tribunal member may order that the officer who made the application under section 268BP may retain the document if the magistrate or tribunal member is satisfied that it is necessary for the officer to retain it:

                     (a)  for the purposes of this Act; or

                     (b)  for the purposes of an investigation as to whether an offence has been committed; or

                     (c)  to enable evidence of an offence to be secured for the purposes of a prosecution.

             (2)  The order must specify the period for which the officer may retain the document.

Subdivision CSearching education providers’ premises

268CA  Authorised officer may enter premises for a visa monitoring purpose

             (1)  An authorised officer may for a visa monitoring purpose:

                     (a)  enter any premises:

                              (i)  occupied by an education provider for the purposes of providing courses of education or of training; or

                             (ii)  at which it is reasonable to believe there might be a thing belonging to or possessed by an education provider, or an activity conducted by or with the consent of the provider, that is relevant to a visa monitoring purpose (whether or not those premises are occupied by the provider); and

                     (b)  exercise the monitoring powers set out in section 268CI.

             (2)  An authorised officer is not authorised to enter premises under subsection (1) unless:

                     (a)  the occupier of the premises has consented to the entry and the officer has shown his or her identity card if requested by the occupier; or

Note:       Section 268CC sets out the requirements for obtaining the occupier’s consent.

                     (b)  the entry is made under a monitoring warrant.

Note:       Monitoring warrants are issued under section 268CE or 268CZD.

             (3)  The powers in this Subdivision may be exercised even if any relevant student visa is no longer in effect or the holder of any such visa is no longer enrolled in a course provided by the education provider.

268CB  Being on premises with consent

             (1)  An authorised officer may enter premises under section 268CA with the consent of the occupier of the premises at any reasonable time of the day or night.

             (2)  However, the authorised officer must leave the premises if the occupier asks the officer to do so.

268CC  Consent

             (1)  Before obtaining the consent of a person for the purposes of paragraph 268CA(2)(a), the authorised officer must inform the person that he or she may refuse consent.

             (2)  An entry of an authorised officer with the consent of a person is not lawful unless the person voluntarily consents to the entry.

268CD  Authorised officer may apply for monitoring warrant

             (1)  An authorised officer may apply to a magistrate or tribunal member for a monitoring warrant in relation to premises mentioned in subsection 268CA(1).

Note:          Monitoring warrants may also be obtained by telephone, fax or other electronic means in urgent circumstances: see section 268CZD.

             (2)  The officer must give the magistrate or tribunal member an information on oath or affirmation that sets out the grounds for seeking the warrant.

268CE  Magistrate or tribunal member may issue monitoring warrant

                   The magistrate or tribunal member may issue a monitoring warrant if he or she is satisfied that it is reasonably necessary that one or more authorised officers have access to the premises mentioned in subsection 268CA(1) for a visa monitoring purpose.

268CF  Magistrate or tribunal member may require more information

             (1)  The magistrate or tribunal member may require an authorised officer or other person to give the magistrate or tribunal member further information on oath or affirmation concerning the grounds on which the monitoring warrant is being sought before issuing it.

             (2)  The information may be given either orally or by affidavit.

             (3)  The magistrate or tribunal member must not issue the warrant until the officer or other person has given the required information.

268CG  Contents of monitoring warrant

             (1)  A monitoring warrant must:

                     (a)  authorise one or more authorised officers:

                              (i)  to enter the premises; and

                             (ii)  to exercise the powers under section 268CI in relation to the premises; and

                     (b)  state whether the entry is authorised at any time of the day or night or during specified hours of the day or night; and

                     (c)  state the day and time at which it ceases to have effect (which must be no later than 7 days after it is issued); and

                     (d)  state the purpose for which the warrant is issued; and

                     (e)  state that the warrant is issued under section 268CE.

             (2)  The authorised officers do not have to be named in the warrant.

268CH  Use of reasonable force and assistance

                   An authorised officer may use such assistance and force as is necessary and reasonable in entering the premises under a monitoring warrant and exercising the powers under section 268CI.

268CI  Monitoring powers of authorised officers

             (1)  For the purposes of this Subdivision, the following are the monitoring powers that an authorised officer may exercise in relation to premises under section 268CA:

                     (a)  to search the premises, and any receptacle on the premises, for any thing on the premises belonging to or possessed by the education provider that might be relevant to a visa monitoring purpose;

                     (b)  to examine any such thing;

                     (c)  to examine any activity that is conducted on the premises by, or with the consent of, the education provider that might be relevant to a visa monitoring purpose;

                     (d)  to take photographs or make video or audio recordings or sketches on the premises of any such activity or thing;

                     (e)  to inspect any document on the premises belonging to or possessed by the education provider that might be relevant to a visa monitoring purpose;

                      (f)  to take extracts from or make copies of any such document;

                     (g)  to take onto the premises any equipment and materials that the authorised officer requires for the purpose of exercising powers in relation to the premises;

                     (h)  the powers in subsections (2), (3) and (5).

             (2)  For the purposes of this Subdivision, the monitoring powers include the power to operate equipment that is on the premises to see whether:

                     (a)  the equipment; or

                     (b)  a disk, tape or other storage device that:

                              (i)  is on the premises; and

                             (ii)  can be used with the equipment or is associated with it;

contains information belonging to the education provider that is relevant to a visa monitoring purpose.

             (3)  For the purposes of this Division, the monitoring powers include the following powers in relation to information described in subsection (2) that is found in the exercise of the power under that subsection:

                     (a)  to operate facilities that are on the premises to put the information in documentary form and remove the documents so produced;

                     (b)  to operate such facilities to transfer the information to a disk, tape or other storage device that:

                              (i)  is brought to the premises for the exercise of the power; or

                             (ii)  is on the premises and the use of which for that purpose has been agreed to in writing by the education provider or occupier (as appropriate);

                     (c)  to remove from the premises a disk, tape or other storage device to which the information has been transferred in exercise of the power under paragraph (b).

             (4)  The powers mentioned in subsections (2) and (3) must be exercised in accordance with sections 268CO, 268CP and 268CQ.

             (5)  If an authorised officer, during a search of premises, reasonably believes that there is on the premises a thing that might afford evidence of the commission of an offence against this Act or the regulations, the Crimes Act 1914 or the Criminal Code, the monitoring powers include securing the thing pending the obtaining of a warrant to seize it.

268CJ  Authorised officer on premises with consent may ask questions

                   An authorised officer who is only authorised to enter premises because the occupier of the premises consented to the entry may:

                     (a)  ask the occupier to:

                              (i)  answer any questions that are relevant to a visa monitoring purpose; and

                             (ii)  give or show the officer any document requested by the officer that is relevant to the matter; or

                     (b)  ask any person on the premises to answer any questions that may facilitate the exercise of monitoring powers in relation to the premises.

Note:          A person could commit an offence if, under this section, the person gives false or misleading information or shows a document that is false or misleading in a material particular: see sections 268CM and 268CN.

268CK  Authorised officer on premises under warrant may ask questions

                   An authorised officer who is authorised to enter premises by a monitoring warrant may:

                     (a)  require the occupier of the premises to:

                              (i)  answer any questions that are relevant to a visa monitoring purpose; and

                             (ii)  give or show the officer any document requested by the officer that is relevant to a visa monitoring purpose; or

                     (b)  require any person on the premises to answer any questions that may facilitate the exercise of monitoring powers in relation to the premises.

Note 1:       A person could commit an offence if the person fails to comply with a requirement under this section: see section 268CL.

Note 2:       A person could commit an offence if, under this section, the person gives false or misleading information or shows a document that is false or misleading in a material particular: see sections 268CM and 268CN.

268CL  Offence: failure to answer question

             (1)  A person commits an offence if the person refuses or fails to comply with a requirement under section 268CK (officer on premises under warrant may ask questions).

Penalty:  Imprisonment for 6 months.

             (2)  However, a person does not commit an offence if answering the question or giving or showing the document might tend to incriminate the person or expose the person to a penalty.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.

             (3)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

268CM  Offence: giving false or misleading information

                   A person who gives false or misleading information in the course of complying or purporting to comply with a request under section 268CJ or a requirement under section 268CK commits an offence.

Penalty:  Imprisonment for 12 months.

268CN  Offence: giving or showing documents that are false or misleading in material particulars

             (1)  A person who gives or shows a document that is false or misleading in a material particular, in the course of complying or purporting to comply with a request under section 268CJ or a requirement under section 268CK, commits an offence.

Penalty:  Imprisonment for 12 months.

             (2)  However, the person does not commit an offence if the document is accompanied by a written statement signed by the person:

                     (a)  stating that the document is, to the person’s knowledge, false or misleading in the material particular concerned; and

                     (b)  setting out or referring to the material particular.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.

268CO  Use of electronic equipment in exercising monitoring powers

                   In order to exercise monitoring powers, an authorised officer or a person assisting may operate electronic equipment on the premises if he or she reasonably believes that this can be done without damaging the equipment or data recorded on the equipment.

Note:          Compensation may be payable in certain circumstances if the equipment or data is damaged: see section 268CY.

268CP  Use of electronic equipment by experts

             (1)  This section applies if the authorised officer or a person assisting reasonably believes that:

                     (a)  there is on the premises information belonging to the education provider concerned:

                              (i)  that is relevant to a visa monitoring purpose; and

                             (ii)  that might be accessible by operating electronic equipment that is on the premises; and

                     (b)  expert assistance is required to operate the equipment; and

                     (c)  if he or she does not take action under subsection (2), the information might be destroyed, altered or otherwise interfered with.

             (2)  The authorised officer or person assisting may do whatever is necessary to secure the equipment.

             (3)  Before doing so, the authorised officer or person assisting must give notice to the occupier of the premises of:

                     (a)  his or her intention to secure equipment; and

                     (b)  the fact that the equipment may be secured for up to 24 hours.

             (4)  The equipment may only be secured until the earlier of:

                     (a)  24 hours later; or

                     (b)  the equipment being operated by the expert.

268CQ  Extension of period

             (1)  If an authorised officer or a person assisting reasonably believes that the expert assistance will not be available within 24 hours, he or she may apply to a magistrate or tribunal member for an extension of the period.

             (2)  The authorised officer or a person assisting must give notice to the occupier of the premises of his or her intention to apply for an extension. The occupier is entitled to be heard in relation to that application.

             (3)  The provisions of this Subdivision relating to the issue of monitoring warrants apply, with such modifications as are necessary, to the issue of an extension.

268CR  Powers without warrant in emergency situations

             (1)  This section applies when an authorised officer is on premises under section 268CA if the officer reasonably suspects that:

                     (a)  a thing relevant to an offence against this Act or the regulations, the Crimes Act 1914 or the Criminal Code is on the premises; and

                     (b)  it is necessary to exercise a power under subsection (2) in order to prevent the thing from being concealed, lost or destroyed; and

                     (c)  it is necessary to exercise the power without the authority of a monitoring warrant because the circumstances are so serious and urgent.

             (2)  The authorised officer may:

                     (a)  search the premises, and any receptacle on the premises, for the thing; and

                     (b)  seize the thing if he or she finds it there; and

                     (c)  exercise the powers mentioned in subsections 268CI(2) and (3) in relation to the thing.

268CS  Retaining seized things

             (1)  This section applies to an authorised officer when one of the following happens in respect of a thing seized under section 268CR:

                     (a)  the reason for the thing’s seizure no longer exists or it is decided that the thing is not to be used in evidence; or

                     (b)  the period of 60 days after the thing’s seizure ends.

             (2)  The authorised officer must take reasonable steps to return the thing to the person from whom it was seized or to the owner if that person is not entitled to possess it.

             (3)  However, the authorised officer does not have to take those steps if:

                     (a)  in a paragraph (1)(b) case:

                              (i)  proceedings in respect of which the thing might afford evidence have been instituted before the end of the 60 days and have not been completed (including an appeal to a court in relation to those proceedings); or

                             (ii)  the authorised officer may retain the thing because of an order under section 268CU; or

                     (b)  in any case—the authorised officer is otherwise authorised (by a law, or an order of a court or a tribunal, of the Commonwealth or a State) to retain, destroy or dispose of the thing; or

                     (c)  the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.

268CT  Authorised officer may apply for a thing to be retained for a further period

             (1)  This section applies if an authorised officer has seized a thing under section 268CR and proceedings in respect of which the thing might afford evidence have not commenced before the end of:

                     (a)  60 days after the seizure; or

                     (b)  a period previously specified in an order of a magistrate or tribunal member under section 268CU.

             (2)  The authorised officer may apply to a magistrate or tribunal member for an order that the officer may retain the thing for a further period.

             (3)  Before making the application, the authorised officer must:

                     (a)  take reasonable steps to discover which persons’ interests would be affected by the retention of the thing; and

                     (b)  if it is practicable to do so, notify each person who the officer believes to be such a person of the proposed application.

268CU  Magistrate or tribunal member may order that thing be retained

             (1)  The magistrate or tribunal member may order that the authorised officer who made an application under section 268CT may retain the thing if the magistrate or tribunal member is satisfied that it is necessary for the officer to do so:

                     (a)  for the purposes of an investigation as to whether an offence has been committed; or

                     (b)  to enable evidence of an offence to be secured for the purposes of a prosecution.

             (2)  The order must specify the period for which the officer may retain the thing.

268CV  Occupier to provide authorised officer with all facilities and assistance

             (1)  The occupier of the premises to which a monitoring warrant relates must provide the authorised officer executing the warrant and any person assisting that officer with all reasonable facilities and assistance for the effective exercise of their powers.

             (2)  A person commits an offence if the person contravenes subsection (1).

Penalty for contravention of this subsection:        10 penalty units.

268CW  Announcement before entry

                   An authorised officer executing a monitoring warrant must, before entering premises under the warrant:

                     (a)  announce that he or she is authorised to enter the premises; and

                     (b)  give a person on the premises (if there is one) an opportunity to allow entry to the premises.

268CX  Copy of monitoring warrant to be given to occupier before entry

             (1)  If a monitoring warrant is being executed on premises and the occupier of the premises is present, the authorised officer must make a copy of the warrant available to the occupier.

             (2)  The authorised officer must identify himself or herself to that person.

268CY  Compensation for damage to electronic equipment or data

             (1)  This section applies if:

                     (a)  damage is caused to equipment as a result of it being operated as mentioned in section 268CO; or

                     (b)  the data recorded on the equipment is damaged or programs associated with its use are damaged or corrupted;

because:

                     (c)  insufficient care was exercised in selecting the person who was to operate the equipment; or

                     (d)  insufficient care was exercised by the person operating the equipment.

             (2)  The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as they agree on.

             (3)  However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in the Federal Court for such reasonable amount of compensation as the Court determines.

             (4)  In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises and his or her employees and agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.

             (5)  Compensation is payable out of money appropriated by the Parliament.

             (6)  For the purposes of subsection (1), damage to data includes damage by erasure of data or addition of other data.

268CZ  Occupier entitled to be present during execution of monitoring warrant

             (1)  If a monitoring warrant is being executed at premises and the occupier of the premises is present, the occupier is entitled to observe the execution of the warrant.

             (2)  The right to observe the execution of the warrant ceases if the occupier impedes that execution.

             (3)  This section does not prevent the execution of the warrant in 2 or more areas of the premises at the same time.

268CZA  Identity cards

             (1)  For the purposes of this Subdivision, an authorised officer’s identity card must be in a form approved by the Secretary or Australian Border Force Commissioner. It must contain a recent photograph of the authorised officer.

             (2)  A person commits an offence if:

                     (a)  the person holds or held an identity card for the purposes of this Subdivision; and

                     (b)  the person ceases to be an authorised officer for all purposes under this Act; and

                     (c)  the person does not, as soon as is practicable after so ceasing, return the identity card to the Secretary or Australian Border Force Commissioner.

Penalty:  1 penalty unit.

             (3)  This offence is one of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (4)  However, the person does not commit the offence if the identity card was lost or destroyed.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (4): see subsection 13.3(3) of the Criminal Code.

             (5)  An authorised officer must carry an identity card at all times when exercising powers under this Subdivision.

268CZB  Authorised officer must produce identity card on request

                   An authorised officer is not entitled to exercise any powers under this Subdivision in relation to premises if:

                     (a)  the occupier of the premises requests the authorised officer to show his or her identity card to the occupier; and

                     (b)  the authorised officer fails to comply with the request.

268CZC  Officer may apply for warrants by telephone etc.

             (1)  An authorised officer may apply to a magistrate or tribunal member for a warrant under section 268CE by telephone, fax or other electronic means if the officer thinks it necessary to do so because of urgent circumstances.

             (2)  The magistrate or tribunal member may require communication by voice to the extent that it is practicable in the circumstances.

             (3)  Before making the application, the authorised officer must prepare an information that sets out the grounds for seeking the warrant.

             (4)  However, the officer may make the application before the information has been sworn or affirmed, if necessary.

268CZD  Magistrate or tribunal member may grant warrant by telephone etc.

             (1)  Before issuing the warrant the magistrate or tribunal member must:

                     (a)  consider the information prepared under subsection 268CZC(3); and

                     (b)  receive any further information that the magistrate or tribunal member may require about the grounds on which the warrant is being sought.

             (2)  The magistrate or tribunal member may issue the warrant if the magistrate or tribunal member is satisfied:

                     (a)  that it is reasonably necessary that one or more authorised officers have access to the premises for a visa monitoring purpose; and

                     (b)  that there are reasonable grounds for issuing the warrant by telephone, fax or other electronic means.

268CZE  Procedure for issuing warrant by telephone etc.

             (1)  If the magistrate or tribunal member issues a monitoring warrant under section 268CZD, the magistrate or tribunal member must complete and sign a warrant that is the same as the monitoring warrant that the magistrate or tribunal member would have issued if the application had been made under section 268CD.

             (2)  The magistrate or tribunal member must also:

                     (a)  inform the authorised officer of:

                              (i)  the terms of the warrant; and

                             (ii)  the day and time when it was signed; and

                            (iii)  the time at which it ceases to have effect (which must be no later than 48 hours after it is signed); and

                     (b)  record on the warrant the reasons for issuing it.

             (3)  The authorised officer must:

                     (a)  complete a form of warrant in the terms given to the authorised officer by the magistrate or tribunal member; and

                     (b)  write on it the magistrate’s or tribunal member’s name and the day and time when the warrant was signed.

268CZF  Procedure after telephone warrant ceases or is executed

             (1)  An authorised officer who completes a form of warrant under section 268CZE must send the magistrate or tribunal member who signed the monitoring warrant:

                     (a)  the form of warrant completed by the authorised officer; and

                     (b)  the information duly sworn or affirmed in connection with the warrant.

             (2)  The form of warrant and information must be sent by the end of the day after the earlier of:

                     (a)  the day on which the warrant ceases to have effect; or

                     (b)  the day on which the warrant is executed.

             (3)  The magistrate or tribunal member must:

                     (a)  attach the monitoring warrant signed by the magistrate or tribunal member under section 268CZE to the form of warrant and information; and

                     (b)  deal with the documents in the same way that the magistrate or tribunal member would have dealt with them if the application for the warrant had been made under section 268CD.

268CZG  Form of warrant authorises exercise of power

                   The form of warrant completed under section 268CZE is authority for any exercise of a power that the monitoring warrant issued under section 268CZD is authority for, if the form of warrant is in accordance with the terms of the monitoring warrant.

268CZH  Court to assume that exercise of power not authorised by telephone etc. warrant

                   A court must assume (unless the contrary is proved) that an exercise of power was not authorised by a monitoring warrant if the monitoring warrant signed by the magistrate or tribunal member under section 268CZE is not produced in evidence.

Division 15General

269  Securities

             (1)  An authorized officer may, subject to subsection (1A), require and take security for compliance with the provisions of this Act or the regulations or with any condition imposed in pursuance of, or for the purposes of, this Act or the regulations:

                     (a)  by a deposit of cash, Treasury Bonds or negotiable instruments, together with a memorandum of deposit in a form approved by the Minister; or

                     (b)  in accordance with a form of security approved by the Minister.

          (1A)  The power of an authorized officer to require and take security under subsection (1) in relation to an application for a visa applies only if:

                     (a)  the security is for compliance with conditions that will be imposed on the visa in pursuance of, or for the purposes of, this Act or the regulations, if the visa is granted; and

                     (b)  the officer has indicated those conditions to the applicant.

             (2)  A security given in accordance with a form approved by the Minister shall, without sealing, bind its subscribers as if it were sealed and, unless otherwise provided in the security, jointly and severally and for the full amount.

             (3)  Whenever a security under this Act is put in suit, the production of the security without further proof shall entitle the Commonwealth to judgment for their stated liabilities against the persons appearing to have executed the security unless the defendants prove compliance with the conditions of the security or that the security was not executed by them or release or satisfaction.

             (4)  If it appears to the court that a non‑compliance with a condition of a security under this Act has occurred, the security shall not be deemed to have been discharged or invalidated, and the subscribers shall not be deemed to have been released or discharged from liability, by reason of:

                     (a)  an extension of time or other concession;

                     (b)  any consent to, or acquiescence in, a previous non‑compliance with a condition; or

                     (c)  any failure to bring suit against the subscribers upon the occurrence of a previous non‑compliance with the condition.

270  Reports of absences of crews of vessels

             (1)  Where, at or after the departure from a port in Australia of a vessel that has entered Australia from overseas, the master, owner, charterer or agent of the vessel reports in writing to an officer that a specified person was a member of the crew of the vessel on board the vessel at the time of its arrival at that port and is or was absent from the vessel at the time of its departure from that port, and states in the report whether that member left the vessel at that port with leave or without leave, that report is, for the purposes of proceedings under or in relation to this Act, prima facie evidence of the matters contained in the report and:

                     (a)  if the report states that the member left the vessel with leave—that the member entered Australia, with leave, from the vessel during the vessel’s stay at that port and remained in Australia after the vessel left that port; or

                     (b)  if the report states that the member left the vessel without leave—that the member entered Australia, without leave, from the vessel during the vessel’s stay at that port.

             (2)  Where, during the stay at a port in Australia of a vessel that has entered Australia from overseas, the master of the vessel reports in writing to an officer that a specified person was included in the complement of the vessel, or a member of the crew of the vessel, on board the vessel at the time of its arrival at that port and:

                     (a)  at any time during the vessel’s stay at that port, left the vessel without leave; or

                     (b)  at any time during the vessel’s stay at that port, left the vessel with leave, but has become absent without leave;

the report is, for the purposes of proceedings under or in relation to this Act, prima facie evidence of the matters contained in the report.

271  Proof of certain matters

             (1)  In migration proceedings:

                     (a)  official documents of the Commonwealth or of a State or Territory, and letters and telegrams, or copies of letters and telegrams, and affidavits produced out of official custody and purporting to have been sent or made by an officer, are, if they contain information or statements upon matters relevant to the proceedings, admissible as evidence of that information or of the matters stated; and

                     (b)  a certificate signed by an officer stating that:

                              (i)  at a time, or during a period, specified in the certificate a specified person was, or was not, the holder of, a visa that was in effect; or

                             (ii)  a specified visa was granted subject to specified conditions or to a specified limitation as to period;

                            is prima facie evidence of the matters stated in the certificate; and

                     (c)  the production out of official custody of a document purporting to be a report made by the master, owner, charterer or agent of a vessel to an officer as to a matter relevant to the operation of this Act is prima facie evidence that the document is such a report; and

                     (d)  a list of passengers in a vessel, or a passenger card relating to a passenger in a vessel, furnished in accordance with the regulations, is prima facie evidence that the person named on the list or card as the operator of the vessel is the operator of the vessel; and

                     (e)  a notation in a person’s passport specifying a proclaimed airport and date (being a notation made by an authorised officer in a form approved by the Minister) is prima facie evidence that the person was immigration cleared on that date; and

                      (f)  a notation in a person’s passport to the effect that the person departed on a specified pre‑cleared flight from a specified foreign country on a specified date (being a notation made by an authorised officer in a form approved by the Minister) is prima facie evidence that the person entered Australia on that pre‑cleared flight; and

                     (g)  for the purpose of proving that a person entered Australia on, or left Australia in, an aircraft (whether or not the person travelled to Australia on a pre‑cleared flight), a certified printout of the relevant movement records is prima facie evidence of the matters contained in the printout; and

                     (h)  for the purpose of proving that a person entered Australia on, or left Australia on, a vessel, a list of any passengers on that vessel, or a passenger card relating to a passenger on that vessel, furnished in accordance with the regulations is admissible in evidence, and production of such a list or passenger card bearing a name that is the same as the name of that person shall be deemed to be proof that that person entered Australia on, or left Australia on, that vessel on the voyage in respect of which the list or passenger card was furnished, unless the contrary is proved; and

                      (i)  for the purpose of proving that a person has, in a place outside Australia, been convicted of a particular crime (including an attempt to commit a crime) and has been sentenced to a particular sentence in respect of the conviction, fingerprint records, photographs and documents or copies thereof, and certificates in relation to any fingerprint records, photographs or documents or copies thereof, are admissible in the evidence if they:

                              (i)  are produced out of the custody of a police or prison officer of the Commonwealth or of a State or Territory; and

                             (ii)  purport to be certified or given under the hand of a police or prison officer, or like authority, of a place outside Australia;

                            and any such certificate is prima facie evidence of the matters stated in the certificate; and

                      (j)  evidence that a person who travelled to and entered Australia on board a vessel, when entering, either:

                              (i)  failed to produce to an officer, upon demand by that officer, a passport; or

                             (ii)  produced to an officer a passport that was not an Australian passport;

                            is prima facie evidence that the person was, when entering, a non‑citizen; and

                     (k)  evidence that a non‑citizen who entered Australia on board a vessel failed, when entering, to produce to an officer, upon demand by that officer, evidence of a visa:

                              (i)  that is in effect; and

                             (ii)  that permits the non‑citizen to travel to and enter Australia;

                            is prima facie evidence that the non‑citizen did not, when entering, hold such a visa; and

                      (l)  a certificate signed by an officer stating whether or not a specified computer program was functioning correctly:

                              (i)  at a specified time or during a specified period; and

                             (ii)  in relation to specified outcomes from the operation of that program under an arrangement made under subsection 495A(1);

                            is prima facie evidence of the matters stated in the certificate; and

                    (m)  a certificate signed by an officer stating:

                              (i)  whether or not a specified person used a specified computer system at a specified time, or during a specified period, to obtain information about another specified person; and

                             (ii)  if the specified computer system was so used—the information about the other specified person that was provided by the system to the user at that time or during that period;

                            is prima facie evidence of the matters stated in the certificate.

Note:          Functioning correctly is defined in subsection (5).

             (2)  In subsection (1), the reference to official documents of a Territory shall be read, in the case of the Territory of Christmas Island, as including official documents of that Territory that were in existence at the commencement of this subsection.

             (3)  In subsection (1), the reference to official documents of a Territory shall be read, in the case of the Coral Sea Islands Territory or the Territory of Cocos (Keeling) Islands, as including official documents of that Territory that were in existence at the commencement of this subsection.

             (4)  In this section:

migration proceedings means:

                     (a)  proceedings in a court (including criminal proceedings):

                              (i)  under this Act, or in relation to an offence against this Act or a contravention of a civil penalty provision; or

                             (ii)  in relation to a deportation order; or

                     (b)  proceedings in the Tribunal for the review of a decision under this Act, including a decision to make a deportation order; or

                     (c)  proceedings in the Immigration Assessment Authority for the review of a fast‑track reviewable decision.

Note:          For offence against this Act, see subsection 5(1).

             (5)  For the purposes of paragraph 271(1)(l), a computer program is functioning correctly if:

                     (a)  outcomes from its operation comply with this Act and the regulations; and

                     (b)  those outcomes would be valid if they were made by the Minister otherwise than by the operation of the computer program.

272  Migrant centres

             (1)  The Minister may, on behalf of the Commonwealth, cause to be established and maintained premises and places (in this section referred to as migrant centres) for the reception, accommodation or training of non‑citizens.

             (2)  Non‑citizens may be admitted to migrant centres in such circumstances, on such terms and conditions, and subject to the payment of such charges, as the Minister approves.

             (3)  The regulations may make provision for and in relation to the regulation of migrant centres, including provision with respect to the establishment and operation of canteen services in migrant centres, the conduct or control of persons in migrant centres and the removal of persons from migrant centres.

             (4)  Nothing in this section shall be deemed to affect any arrangements made or to be made in relation to, or the carrying on of the business of, the company known as Commonwealth Hostels Limited.

273  Detention centres

             (1)  The Minister may, on behalf of the Commonwealth, cause detention centres to be established and maintained.

             (2)  The regulations may make provision in relation to the operation and regulation of detention centres.

             (3)  Without limiting the generality of subsection (2), regulations under that subsection may deal with the following matters:

                     (a)  the conduct and supervision of detainees;

                     (b)  the powers of persons performing functions in connection with the supervision of detainees.

             (4)  In this section:

detention centre means a centre for the detention of persons whose detention is authorised under this Act.

274  Secretary or Australian Border Force Commissioner may issue documents containing information concerning certain persons

             (1)  This section applies to a person who:

                     (a)  is a deportee who has not yet been deported; or

                     (b)  is a removee who has not yet been removed; or

                     (c)  has been refused immigration clearance and has not subsequently been immigration cleared.

             (2)  Where the Secretary or Australian Border Force Commissioner thinks that the issue to a person of a document under subsection (3) relating to another person, being a person to whom this section applies, would facilitate the making of arrangements for the transportation, by aircraft, of the other person from Australia, the Secretary or Australian Border Force Commissioner may give the first‑mentioned person a document under subsection (3) relating to the other person.

             (3)  A document for the purposes of subsection (2):

                     (a)  shall be in the prescribed form;

                     (b)  shall state, to the best of the Secretary’s or Australian Border Force Commissioner’s knowledge, the name and nationality of the person concerned; and

                     (c)  may include such other information as the Secretary or Australian Border Force Commissioner thinks appropriate.

Part 3Migration agents and immigration assistance

Division 1Preliminary

275  Interpretation

                   In this Part, unless the contrary intention appears:

cancellation review applicant means an applicant for:

                     (a)  review of a decision to cancel a visa held by the applicant; or

                     (b)  revocation under section 137L of the cancellation of a visa held by the applicant; or

                     (c)  review of a decision under that section not to revoke such a cancellation.

cancellation review application, in relation to a cancellation review applicant, means the application by the applicant.

high visa refusal rate, in relation to a visa of a particular class, has the meaning given by section 306AC.

Institute means the Migration Institute of Australia Limited (A.C.N. 003 409 390).

Migration Agents Registration Authority means:

                     (a)  if an appointment of the Institute is in force under section 315—the Institute; or

                     (b)  otherwise—the Minister.

migration procedure means the law, and administrative practice, relating to immigration.

official means:

                     (a)  a person appointed or engaged under the Public Service Act 1999; or

                     (c)  a member of the public service of a State or Territory; or

                     (d)  a member of the staff of a Parliamentarian.

parliamentarian means:

                     (a)  a Senator; or

                     (b)  a Member of the House of Representatives; or

                     (c)  a member of the Parliament of a State; or

                     (d)  a member of the Legislative Assembly of a Territory.

Register means the Register of Migration Agents kept under section 287.

registered migration agent means an individual registered as a migration agent under section 286.

registration application means an application to be registered as a migration agent.

registration application fee means charge imposed by section 4 of the Migration Agents Registration Application Charge Act 1997 on a registration application.

registration status charge means charge imposed by section 10 of the Migration Agents Registration Application Charge Act 1997.

review authority means:

                     (a)  the the Tribunal in reviewing a Part 5‑reviewable decision; or

                     (b)  the the Tribunal in reviewing a Part 7‑reviewable decision; or

                     (c)  the Immigration Assessment Authority.

276  Immigration assistance

             (1)  For the purposes of this Part, a person gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist a visa applicant or cancellation review applicant by:

                     (a)  preparing, or helping to prepare, the visa application or cancellation review application; or

                     (b)  advising the visa applicant or cancellation review applicant about the visa application or cancellation review application; or

                     (c)  preparing for proceedings before a court or review authority in relation to the visa application or cancellation review application; or

                     (d)  representing the visa applicant or cancellation review applicant in proceedings before a court or review authority in relation to the visa application or cancellation review application.

             (2)  For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:

                     (a)  preparing, or helping to prepare, a document indicating that the other person nominates or sponsors a visa applicant for the purposes of the regulations; or

                     (b)  advising the other person about nominating or sponsoring a visa applicant for the purposes of the regulations; or

                     (c)  representing the other person in proceedings before a court or review authority that relate to the visa for which the other person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant) for the purposes of the regulations.

          (2A)  For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:

                     (a)  preparing, or helping to prepare, a request to the Minister to exercise his or her power under section 351, 417 or 501J in respect of a decision (whether or not the decision relates to the other person); or

                    (aa)  preparing, or helping to prepare, a request to the Minister to exercise a power under section 195A, 197AB or 197AD (whether or not the exercise of the power would relate to the other person); or

                     (b)  advising the other person about making a request referred to in paragraph (a) or (aa).

             (3)  Despite subsections (1), (2) and (2A), a person does not give immigration assistance if he or she merely:

                     (a)  does clerical work to prepare (or help prepare) an application or other document; or

                     (b)  provides translation or interpretation services to help prepare an application or other document; or

                     (c)  advises another person that the other person must apply for a visa; or

                     (d)  passes on to another person information produced by a third person, without giving substantial comment on or explanation of the information.

             (4)  A person also does not give immigration assistance in the circumstances prescribed by the regulations.

277  Immigration legal assistance

             (1)  For the purposes of this Part, a lawyer gives immigration legal assistance if the lawyer:

                     (a)  acts for a visa applicant or cancellation review applicant in preparing for proceedings before a court in relation to the visa application or cancellation review application; or

                     (b)  represents or otherwise acts for a visa applicant or cancellation review applicant in proceedings before a court in relation to the visa application or cancellation review application; or

                     (c)  gives advice to a visa applicant or cancellation review applicant in relation to the visa application or cancellation review application that is not advice for the purpose of any of the following:

                              (i)  the preparation or lodging of the visa application or cancellation review application;

                             (ii)  proceedings before a review authority in relation to the visa application or cancellation review application;

                            (iii)  the review by a review authority of a decision relating to the visa application or cancellation review application.

             (2)  For the purposes of this Part, a lawyer also gives immigration legal assistance if the lawyer:

                     (a)  represents or otherwise acts for a person in proceedings (or in preparing for proceedings) before a court that relate to the visa for which the person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant) for the purposes of the regulations; or

                     (b)  gives advice to a person about nominating or sponsoring a visa applicant for the purposes of the regulations (except advice described in subsection (3)).

             (3)  A lawyer does not give immigration legal assistance in giving advice to a person about nominating or sponsoring a visa applicant for the purposes of the regulations if the advice is for the purpose of:

                     (a)  the preparation or lodging of an approved form putting forward the name of a visa applicant; or

                     (b)  the preparation or lodging of an approved form undertaking sponsorship; or

                     (c)  proceedings before a review authority that relate to the visa for which the person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant); or

                     (d)  the review by a review authority of a decision relating to the visa for which the person was nominating or sponsoring the visa applicant (or seeking to nominate or sponsor the visa applicant).

             (4)  A lawyer does not give immigration legal assistance in giving advice to another person that is for the purpose of the preparation or making of a request to the Minister to exercise his or her power under section 351, 417 or 501J in respect of a decision (whether or not the decision relates to the other person).

             (5)  A lawyer does not give immigration legal assistance in giving advice to another person that is for the purpose of the preparation or making of a request to the Minister to exercise a power under section 195A, 197AB or 197AD (whether or not the exercise of the power would relate to the other person).

278  Relation by employment

             (1)  For the purposes of this Part, an individual is related by employment to another individual if:

                     (a)  one individual is an employee of the other; or

                     (b)  they are executive officers of the same corporation; or

                     (c)  they are members of the same partnership; or

                     (d)  one individual is an employee of a corporation and the other is:

                              (i)  an employee of the corporation; or

                             (ii)  an executive officer of the corporation; or

                     (e)  one individual is an employee of a partnership and the other is:

                              (i)  an employee of the partnership; or

                             (ii)  a member of the partnership.

Regulations

             (2)  For the purposes of this Part, an individual is also related by employment to another individual in any other prescribed circumstance.

Expanded meaning of employee

             (3)  In this section:

employee includes a person engaged as a consultant or as an independent contractor.

279  Part VIIC of the Crimes Act 1914 to apply to this Part

             (1)  Despite paragraph 85ZZH(d) of the Crimes Act 1914, Part VIIC of that Act applies to this Part.

             (2)  Division 3 of Part VIIC of the Crimes Act 1914 applies in relation to the Migration Agents Registration Authority as if it were a Commonwealth authority for the purposes of that Division.

Division 2Restrictions on giving of immigration assistance and making of immigration representations

280  Restrictions on giving of immigration assistance

             (1)  Subject to this section, a person who is not a registered migration agent must not give immigration assistance.

Penalty:  60 penalty units.

Note:          See also paragraph 504(1)(ja) (which deals with the payment of penalties as an alternative to prosecution).

          (1A)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (2)  This section does not prohibit a parliamentarian from giving immigration assistance.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

             (3)  This section does not prohibit a lawyer from giving immigration legal assistance.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

             (4)  This section does not prohibit an official from giving immigration assistance in the course of his or her duties as an official.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

             (5)  This section does not prevent an individual from giving immigration assistance of a kind covered by subsection 276(2A) if the assistance is not given for a fee or other reward.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

          (5A)  This section does not prevent a close family member of a person from giving immigration assistance to the person.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

          (5B)  This section does not prevent a person nominating a visa applicant for the purposes of the regulations from giving immigration assistance to the applicant.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

          (5C)  This section does not prevent a person sponsoring a visa applicant for the purposes of the regulations from giving immigration assistance to the applicant.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

             (6)  This section does not prohibit an individual from giving immigration assistance in his or her capacity as:

                     (a)  a member of a diplomatic mission; or

                     (b)  a member of a consular post; or

                     (c)  a member of an office of an international organisation.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

             (7)  In this section:

close family member has the meaning given by the regulations.

member of a consular post means a person who is a member of a consular post for the purposes of the Consular Privileges and Immunities Act 1972.

member of a diplomatic mission means a person who is a member of a mission for the purposes of the Diplomatic Privileges and Immunities Act 1967.

member of an office of an international organisation means the holder of an office in, an employee of, or a voluntary worker for, a body that, under section 3 of the International Organisations (Privileges and Immunities) Act 1963, is an international organisation within the meaning of that Act.

281  Restriction on charging fees for immigration assistance

             (1)  Subject to subsection (3), a person who is not a registered migration agent must not ask for or receive any fee or other reward for giving immigration assistance.

Penalty:  Imprisonment for 10 years.

             (2)  Subject to subsection (3), a person must not ask for or receive any fee or other reward for the giving of immigration assistance by another person who is not a registered migration agent.

Penalty:  Imprisonment for 10 years.

             (3)  This section does not prohibit:

                     (a)  a lawyer from asking for or receiving a fee for giving immigration legal assistance; or

                     (b)  a person from asking for or receiving a fee for the giving of immigration legal assistance by a lawyer.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

             (4)  A person is not entitled to sue for, recover or set off any fee or other reward that the person must not ask for or receive because of subsection (1).

282  Restriction on charging fees for immigration representations

             (1)  A person who is not a registered migration agent must not ask for or receive any fee or other reward for making immigration representations.

Penalty:  Imprisonment for 10 years.

             (2)  A person must not ask for or receive any fee or other reward for the making of immigration representations by another person who is not a registered migration agent.

Penalty:  Imprisonment for 10 years.

             (3)  A person is not entitled to sue for, recover or set off any fee or other reward that the person must not ask for or receive because of subsection (1).

             (4)  For the purposes of this section, a person makes immigration representations if he or she makes representations to, or otherwise communicates with, the Minister, a member of the Minister’s staff or the Department:

                     (a)  on behalf of a visa applicant about the application for the visa; or

                     (b)  on behalf of a cancellation review applicant about the cancellation review application; or

                     (c)  on behalf of a person nominating (or seeking to nominate) a visa applicant for the purposes of the regulations, about the nomination; or

                     (d)  on behalf of a person sponsoring (or seeking to sponsor) a visa applicant for the purposes of the regulations, about the sponsorship; or

                     (e)  on behalf of a person who has made (or is proposing to make) a request to the Minister to exercise his or her power under section 351, 417 or 501J in respect of a decision (whether or not the decision relates to that person), about the request; or

                      (f)  on behalf of a person who has made (or is proposing to make) a request to the Minister to exercise a power under section 195A, 197AB or 197AD (whether or not the exercise of the power would relate to the other person), about the request.

             (5)  A person does not make immigration representations in the circumstances prescribed by the regulations.

283  False representation that a person is a registered migration agent

             (1)  A person who is not a registered migration agent must not directly or indirectly represent that he or she is such an agent.

             (2)  A person must not directly or indirectly represent that another person who is not a registered migration agent is such an agent.

Penalty:  Imprisonment for 2 years.

284  Restriction on self‑advertising of the giving of immigration assistance

             (1)  Subject to this section, a person who is not a registered migration agent must not advertise that he or she gives immigration assistance.

Penalty:  Imprisonment for 2 years.

             (2)  This section does not prohibit a parliamentarian from advertising that he or she gives immigration assistance.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

             (3)  This section does not prohibit a lawyer from advertising that he or she gives immigration legal assistance.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

             (4)  This section does not prohibit an official from advertising that he or she gives immigration assistance in the course of acting as an official.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

285  Restriction on other advertising of immigration assistance

             (1)  Subject to this section, a person must not directly or indirectly advertise that another person who is not a registered migration agent gives immigration assistance.

Penalty:  Imprisonment for 2 years.

             (2)  This section does not prohibit a person from advertising that another person who is a parliamentarian gives immigration assistance.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

             (3)  This section does not prohibit a person from advertising that another person who is a lawyer gives immigration legal assistance.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

             (4)  This section does not prohibit a person from advertising that another person who is an official gives immigration assistance in the course of the official acting as an official.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

Division 3Registration of migration agents

286  Individuals may be registered as migration agents

                   Individuals may be registered as migration agents in accordance with this Part.

287  Register of Migration Agents

             (1)  The Migration Agents Registration Authority must keep a register, to be known as the Register of Migration Agents, listing individuals who are registered as migration agents.

             (2)  The Register is to show in respect of each registered migration agent:

                     (a)  the agent’s full name; and

                     (b)  any business names of the agent or the agent’s employer; and

                     (c)  a business address for the agent; and

                     (d)  a telephone number for contacting the agent; and

                     (e)  the date on which the agent was registered most recently; and

                     (g)  particulars of any suspension of the agent’s registration; and

                     (h)  particulars of any caution given to the agent; and

                      (i)  particulars of any other prescribed matter.

             (3)  The Migration Agents Registration Authority must keep records to show:

                     (a)  what was in the Register from time to time; and

                     (b)  particulars of any cancellation or suspension of a registered migration agent’s registration or of any caution given to such an agent.

          (3A)  The Authority may publish, in the prescribed way, a list of the names of former registered migration agents, their former migration agent registration numbers and the date they ceased to be registered. The Authority must remove a person’s details from the list at the end of the prescribed period.

             (4)  The Migration Agents Registration Authority must make the Register available, in a suitable form and at reasonable times, for inspection by any person.

Removal of disciplinary details

             (5)  The Authority must remove from the Register the following details:

                     (a)  particulars of any suspension of a registered migration agent’s registration (if the suspension is no longer in effect);

                     (b)  particulars of any caution given to such an agent (if the caution is no longer in effect).

Time for removal

             (6)  The Authority must remove the details within the period worked out in accordance with the regulations.

             (7)  The regulations may prescribe different periods in relation to details about suspensions or cautions.

288  Application for registration

             (1)  An individual may apply to the Migration Agents Registration Authority to be registered as a registered migration agent.

Publishing requirement

             (2)  The individual must satisfy 1 of 2 publishing options set out in section 288A (unless he or she has been registered at some time in the 12 months immediately before making the application).

Form of application

             (3)  A registration application is to be in a form approved in writing by the Authority and contain such information relevant to the application as is required by the form.

Note:          The applicant may be required to make a statutory declaration, or to answer questions, in relation to the application: see section 288B.

Time of application

             (4)  The day on which a registration application is taken to have been made is the day worked out in accordance with the regulations.

Registration application fee

             (5)  The Authority must not consider a registration application unless the applicant has paid the registration application fee (if any) on the application.

Evidence of publication

             (6)  If the applicant is required under this section to satisfy 1 of 2 publishing options, the Authority must not consider the application unless the applicant has:

                     (a)  satisfied one of those options; and

                     (b)  given the Authority evidence of the publication concerned.

Proceedings finalised about previous registration

          (6A)  If:

                     (a)  the applicant has been registered at some time before making the application; and

                     (b)  the Authority made a decision to suspend or cancel the applicant’s registration; and

                     (c)  the applicant made an application (the review application) for review of the decision under the Administrative Appeals Tribunal Act 1975 or for judicial review of the decision;

then the Authority must not consider the registration application unless it is satisfied that all proceedings (including any appeals) resulting from the review application have been finalised.

Withdrawal of application

             (7)  The applicant may withdraw an application by giving notice in writing to the Authority. However, the applicant is not entitled to a refund of the registration application fee paid in relation to the application.

288A  Publishing requirement

             (1)  For the purposes of subsection 288(2), this section sets out an individual’s 2 publishing options.

Individual publication

             (2)  The first option is for the individual to publish in the prescribed way a notice:

                     (a)  stating his or her intention to apply for registration; and

                     (b)  stating that anyone may give the Migration Agents Registration Authority a written objection to his or her registration within the period of 30 days after publication of the notice (or 30 days after the day on which the notice is last published, if it must be published more than once).

Joint publication

             (3)  The second option is for the individual and one or more other individuals, who are all employees of the same employer and who all intend to apply for registration, to publish in the prescribed way a single notice:

                     (a)  stating their intention to apply for registration; and

                     (b)  stating that anyone may give the Migration Agents Registration Authority a written objection to registration of any one or more of them within the period of 30 days after publication of the notice (or 30 days after the day on which the notice is last published, if it must be published more than once).

288B  Requiring applicants to make statutory declarations or to answer questions

             (1)  The Migration Agents Registration Authority may require an applicant who, on the day the application is taken to have been made, is not a registered migration agent:

                     (a)  to make a statutory declaration in relation to information or documents provided by the applicant in relation to the application; or

                     (b)  to appear before one or more individuals specified by the Authority and to answer questions in relation to the application.

             (2)  If an applicant is required under this section to make a statutory declaration or to answer questions, the Authority must not further consider the application until the applicant does so.

289  Registration

             (1)  The Migration Agents Registration Authority must register an applicant by entering his or her name in the Register, unless this Part prohibits registration of the applicant.

Note:          If the Migration Agents Registration Authority is considering refusing a registration application, it must give the applicant a chance to make a further submission supporting the application. See sections 309 and 310.

             (2)  The Migration Agents Registration Authority must do so as soon as possible.

             (3)  However, if the applicant was required under section 288 to satisfy 1 of 2 publishing options:

                     (a)  the Authority must not register the applicant before the end of the time for objections that was specified in the notice concerned; and

                     (b)  the Authority must consider any objection received within that time when deciding whether to register the applicant.

             (4)  Subject to subsection 300(6), if the Migration Agents Registration Authority enters in the Register the name of an applicant who is already registered, the later registration takes effect at the end of the existing registration (unless the existing registration is cancelled before it would end under section 299).

289A  Applicant must not be registered if does not satisfy registration requirements

                   An applicant:

                     (a)  who has never been registered; or

                     (b)  who is applying to be registered more than 12 months after the end of his or her previous registration;

must not be registered unless the Migration Agents Registration Authority is satisfied that he or she:

                     (c)  has completed a prescribed course within the prescribed period and has passed a prescribed exam within the prescribed period; or

                     (d)  holds the prescribed qualifications.

290  Applicant must not be registered if not a person of integrity or not fit and proper

             (1)  An applicant must not be registered if the Migration Agents Registration Authority is satisfied that:

                     (a)  the applicant is not a fit and proper person to give immigration assistance; or

                     (b)  the applicant is not a person of integrity; or

                     (c)  the applicant is related by employment to an individual who is not a person of integrity and the applicant should not be registered because of that relationship.

             (2)  In considering whether it is satisfied that the applicant is not fit and proper or not a person of integrity, the Migration Agents Registration Authority must take into account:

                     (a)  the extent of the applicant’s knowledge of migration procedure; and

                     (c)  any conviction of the applicant of a criminal offence relevant to the question whether the applicant is not:

                              (i)  a fit and proper person to give immigration assistance; or

                             (ii)  a person of integrity;

                            (except a conviction that is spent under Part VIIC of the Crimes Act 1914); and

                     (d)  any criminal proceedings that the applicant is the subject of and that the Authority considers relevant to the application; and

                     (e)  any inquiry or investigation that the applicant is or has been the subject of and that the Authority considers relevant to the application; and

                      (f)  any disciplinary action that is being taken, or has been taken, against the applicant that the Authority considers relevant to the application; and

                     (g)  any bankruptcy (present or past) of the applicant; and

                     (h)  any other matter relevant to the applicant’s fitness to give immigration assistance.

             (3)  In considering whether it is satisfied that an individual to whom the applicant is related by employment is not a person of integrity, the Migration Agents Registration Authority must take into account each of the following matters, so far as the Authority considers it relevant to the question whether the individual is not a person of integrity:

                     (a)  any conviction of the individual of a criminal offence (except a conviction that is spent under Part VIIC of the Crimes Act 1914);

                     (b)  any criminal proceedings that the individual is the subject of;

                     (c)  any inquiry or investigation that the individual is or has been the subject of;

                     (d)  any disciplinary action that is being taken, or has been taken, against the individual;

                     (e)  any bankruptcy (present or past) of the individual.

             (4)  To avoid doubt, this section applies to all applicants (not just first time applicants).

290A  Applicant for repeat registration must not be registered if he or she has not done continuing professional development

                   If the applicant has been registered at some time in the 12 months before making the application, he or she must not be registered if the Migration Agents Registration Authority is satisfied that the applicant has not met, within the prescribed period, the requirements prescribed by the regulations for continuing professional development of registered migration agents.

290B  Applicant must not be registered if any unpaid registration status charge

                   An applicant must not be registered if any registration status charge payable by him or her remains unpaid after the time when it becomes due for payment.

291  Applicant must not be registered if registration refused in past year

             (1)  An applicant must not be registered if he or she has been refused registration as a migration agent within 12 months before his or her application.

             (2)  To avoid doubt, this section applies to all applicants (not just first time applicants).

291A  Applicant must not be registered if suspension would be in effect

                   If:

                     (a)  an applicant has been registered (the previous registration) at some time before making the application; and

                     (b)  the Migration Agents Registration Authority decided to suspend the previous registration (whether or not that decision was stayed); and

                     (c)  the previous registration ended on or after the suspension decision;

then the applicant must not be registered during a period in which the previous registration would have been suspended had the previous registration not already ended.

Example 1: A registered migration agent’s registration is suspended for a period. The agent is deregistered under section 302 so the suspension of the registration ends. The agent cannot be re‑registered until the suspension period ends.

Example 2: The Migration Agents Registration Authority suspends a registered migration agent’s registration. The agent applies for review of the decision and a stay order is made in relation to the decision. The agent continues to practise, while the stay order is in force, until the agent’s registration ends. Subsection 288(6A) prevents the agent from being re‑registered until the review proceedings are finalised. The agent cannot be re‑registered if the suspension decision is affirmed on review and the suspension would not have ended (had the registration continued).

Example 3: Under section 300, a registered migration agent’s registration is continued after the expiry day of the agent’s registration. The Migration Agents Registration Authority makes a decision to suspend the agent’s registration until the agent complies with a condition, and so the registration ends because of subsection 300(4). The agent cannot be re‑registered until the agent complies with the condition.

292  Applicant must not be registered if registration cancelled in past 5 years

                   An applicant whose registration has been cancelled under section 303, 306AG or 306AGAC must not be registered within 5 years of the cancellation.

292A  Applicant must not be registered if any barring period has not ended

                   An applicant must not be registered if:

                     (a)  the Migration Agents Registration Authority has made a decision under subsection 311A(1) or 311L(1) to bar him or her from being a registered migration agent for a particular period; and

                     (b)  the period has not ended.

292B  Applicant must not be registered unless he or she holds appropriate professional indemnity insurance

             (1)  An applicant must not be registered unless the Migration Agents Registration Authority is satisfied that he or she has professional indemnity insurance of a kind prescribed by the regulations.

             (2)  To avoid doubt, this section applies to all applicants (not just first time applicants).

293  Applicant under 18 must not be registered

                   An applicant must not be registered if he or she is under 18.

294  Applicant must not be registered if not an Australian citizen, permanent resident or New Zealander with special visa

             (1)  An applicant must not be registered unless he or she is:

                     (a)  an Australian citizen; or

                     (b)  an Australian permanent resident (within the meaning of the regulations); or

                     (c)  a New Zealand citizen who holds a special category visa.

             (2)  To avoid doubt, this section applies to all applicants (not just first time applicants).

295  Notice of refusal of application

                   If the Migration Agents Registration Authority decides not to register an applicant, the Authority must give the applicant written notice of the decision and of the reasons for it.

Note:          The applicant may apply to the Administrative Appeals Tribunal for review of the decision. See section 306 of this Act. (Section 27A of the Administrative Appeals Tribunal Act 1975 requires that people whose interests are affected by the Authority’s decision be given notice of their rights to seek review of the decision.)

299  Period of registration

             (1)  Subject to sections 300, 302, 303, 306AG and 306AGAC and subsection (3), the registration of a registered migration agent lasts for 12 months after the registration.

             (3)  If the registration of a registered migration agent is suspended for a period, the current period of the agent’s registration is extended by a period equal to that period of suspension.

300  Automatic continuation of registration

When agent’s registration is automatically continued

             (1)  Subsection (4) applies to continue a registered migration agent’s registration beyond the last day (the expiry day) of the agent’s registration if, before the end of the expiry day:

                     (a)  the agent made a registration application; and

                     (b)  the agent paid the registration application fee (if any) in respect of the application; and

                     (c)  the Migration Agents Registration Authority had not decided the application.

Exception—suspension

             (2)  However, subsection (4) does not apply to continue the agent’s registration if, before the end of the expiry day, the Authority made a decision to suspend the agent’s registration, unless:

                     (a)  the suspension had been completed before the end of the expiry day; or

                     (b)  there was a decision (other than a stay order) of the Administrative Appeals Tribunal or a court in force, immediately before the end of the expiry day, to the effect that the agent’s registration is not suspended or cancelled.

Exception—cancellation

             (3)  Subsection (4) also does not apply to continue the agent’s registration if, before the end of the expiry day, the Authority made a decision to cancel the agent’s registration, unless:

                     (a)  there was a decision (other than a stay order) of the Administrative Appeals Tribunal or a court in force, immediately before the end of the expiry day, to the effect that the agent’s registration is not suspended or cancelled; or

                     (b)  there was a decision of the Administrative Appeals Tribunal or a court in force to the effect that the agent’s registration is suspended, and the suspension had been completed before the end of the expiry day.

Period of continuation of registration

             (4)  The agent’s registration is taken to continue after the expiry day until the earliest of the following:

                     (a)  the Authority decides the application;

                     (b)  the Authority decides to suspend the agent’s registration;

                     (c)  the Authority decides to cancel the agent’s registration;

                     (d)  the end of the period of 10 months beginning on the day after the expiry day.

Application granted if no decision within a certain period

             (5)  If, before the end of the period of 10 months beginning on the day after the expiry day, the Authority has not:

                     (a)  decided the registration application; and

                     (b)  decided to suspend the agent’s registration; and

                     (c)  decided to cancel the agent’s registration;

then the application is taken to have been granted at the end of that period.

When registration takes effect

             (6)  If the Authority grants the registration application, or the registration application is taken to have been granted under subsection (5), the registration is treated as having taken effect at the end of the expiry day.

Example:    An agent’s registration is due to end on 31 October (the expiry day). On 20 October the agent applies to be registered again. The Authority has not decided the application by the end of 31 October.

                   The agent’s registration continues automatically past 31 October until the Authority decides the application.

                   On 15 November the Authority grants the application. The new 12 month registration is treated as having taken effect at the end of 31 October.

When Authority makes decision

             (7)  For the purposes of this section, the Authority is taken to have made a decision even if the decision is later stayed.

301  Migration Agents Registration Authority must warn of expiry

                   At least 30 days before the period for which a registered migration agent is registered will end under section 299, the Migration Agents Registration Authority must give the agent a written notice stating when the period will end.

302  Automatic deregistration

             (1)  The Migration Agents Registration Authority must deregister a registered migration agent by removing his or her name from the Register if:

                     (a)  he or she requests the Authority, in writing, to do so; or

                     (d)  he or she dies.

303  Disciplining registered migration agents

             (1)  The Migration Agents Registration Authority may:

                     (a)  cancel the registration of a registered migration agent by removing his or her name from the register; or

                     (b)  suspend his or her registration; or

                     (c)  caution him or her;

if it becomes satisfied that:

                     (d)  the agent’s application for registration was known by the agent to be false or misleading in a material particular; or

                     (e)  the agent becomes bankrupt; or

                      (f)  the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or

                     (g)  an individual related by employment to the agent is not a person of integrity; or

                     (h)  the agent has not complied with the Code of Conduct prescribed under section 314.

Note 1:       The Authority is required to caution a registered migration agent or cancel or suspend a registered migration agent’s registration in certain circumstances: see Division 3AA.

Note 2:       If the Authority is considering making a decision under this section, it must invite the registered migration agent to make a submission: see sections 309 and 310.

Unpaid registration status charge

             (2)  The Authority may also suspend the registration of a registered migration agent if any registration status charge payable by him or her remains unpaid after the time when it becomes due for payment.

304  Period of suspension

             (1)  If the Migration Agents Registration Authority suspends the registration of a registered migration agent under section 303, the Migration Agents Registration Authority may:

                     (a)  set a period of suspension of not more than 5 years; or

                     (b)  set a condition or conditions for the lifting of the suspension.

             (2)  If 2 or more conditions are set under paragraph (1)(b), one of them may be that at least a set period of suspension has ended.

304A  Conditions for lifting cautions

                   The Migration Agents Registration Authority may set one or more conditions for the lifting of a caution it gives to a registered migration agent.

Note:          Particulars of cautions are shown on the Register: see section 287.

305  Notice of disciplinary decision

Notice to agent

             (1)  The Migration Agents Registration Authority must give a registered migration agent written notice of a decision made under section 303 in relation to the agent.

             (2)  The notice must set out the reasons for the decision.

When decision takes effect

             (3)  The decision takes effect at the time the agent is given written notice of it.

Note:          Section 332H sets out when the agent is taken to have been given the notice.

305A  Making disciplinary details publicly available

             (1)  If a registered migration agent is given notice of a decision under section 303, then the Migration Agents Registration Authority:

                     (a)  must as soon as possible make available in the prescribed way a statement that sets out the decision and specifies the grounds for the decision; and

                     (b)  may prepare a statement about the decision and make it available to one or more groups of persons, or to one or more persons, in any way the Authority thinks fit.

This subsection applies even if a stay order is made in relation to the decision.

Content of statement

             (3)  A statement under this section need not set out the findings on material questions of fact and need not refer to the evidence or other material on which those findings were based.

Protection from civil proceedings

             (4)  No action or other proceeding for damages lies against a person for publishing in good faith:

                     (a)  a copy of; or

                     (b)  an extract from; or

                     (c)  a summary of;

a statement under this section.

305B  Providing disciplinary details to clients

             (1)  If the Migration Agents Registration Authority makes a decision under section 303 in relation to a registered migration agent, the Authority or the Secretary may inform one or more of the clients of the agent about any one or more of the following:

                     (a)  the making of the decision;

                     (b)  whether or not the agent has applied for review of the decision;

                     (c)  the status of any such review.

             (3)  In this section:

client has the meaning given by section 306C.

305C  Requiring registered migration agents to give information or documents

             (1)  This section applies if the Migration Agents Registration Authority is considering:

                     (a)  refusing a registration application from a registered migration agent; or

                     (b)  making a decision under section 303 to cancel or suspend such an agent’s registration or to caution such an agent.

             (2)  The Authority may, by written notice given to the agent, require him or her to provide the Authority with prescribed information or prescribed documents within the specified period and in the specified manner.

             (3)  A period specified in a notice under this section must end at least 14 days after the notice was given.

Note:          Section 332H sets out when the agent is taken to have been given the notice.

Offence

             (4)  A person commits an offence if:

                     (a)  the person is subject to a requirement under this section; and

                     (b)  the person contravenes the requirement.

Penalty:  60 penalty units.

             (5)  An offence against subsection (4) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

Self‑incrimination

             (6)  A person is not excused from giving information or providing a document on the ground that the information or provision of the document may tend to incriminate the person.

             (7)  However:

                     (a)  any information or document provided in response to a requirement under subsection (2); and

                     (b)  any information or thing (including any document) obtained as a direct or indirect result of information or a document provided in response to a requirement under subsection (2);

is not admissible in evidence against the person in any criminal proceedings (except proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Act or the regulations).

306  Review by the Administrative Appeals Tribunal

                   Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of a decision by the Migration Agents Registration Authority made under this Division.

306AA  Stay orders

                   If the Administrative Appeals Tribunal or a court orders a stay of a decision under section 303 to cancel or suspend a registered migration agent’s registration, it is taken to be a condition of the order that the prescribed supervisory requirements apply in relation to the agent during the period of the order.

Division 3AADisciplining registered migration agents for engaging in vexatious activity

Subdivision ADefinitions

306AB  Definitions

                   In this Division:

mandatory decision means a decision of the Migration Agents Registration Authority under paragraph 306AG(1)(a), (b) or (c) or subsection 306AGAC(1).

referral decision means a decision of the Minister under subsection 306AC(1) or 306AGAA(8).

Subdivision BReferral of registered migration agents for disciplinary action

306AC  Minister may refer registered migration agent to the Migration Agents Registration Authority

Referral

             (1)  The Minister may refer a registered migration agent to the Migration Agents Registration Authority if the agent has a high visa refusal rate in relation to a visa of a particular class.

Note 1:       If the Minister is considering doing so, the Minister must invite the agent to make a submission on the matter and must consider any submission that is made: see section 306AE.

Note 2:       If the Minister refers an agent, the Authority must consider whether to discipline the agent: see section 306AG.

Note 3:       The Minister’s decision and any decision of the Authority to discipline the agent are reviewable by the Administrative Appeals Tribunal: see section 306AJ.

High visa refusal rate

             (2)  This is how to work out if the agent has a high visa refusal rate in relation to a visa of a particular class:

Method statement

Step 1.   Work out the number of:

               (a)     valid applications for a visa of that class; and

              (b)     applications for review by a review authority of a decision to refuse to grant a visa of that class;

              made during a period determined by the Minister under this Division in respect of which the agent has given immigration assistance to the applicants concerned.

                   Note:             Subsections (3) and (4) provide for certain applications not to be counted.

Step 2.   Work out if the number at step 1 is equal to or greater than the number determined by the Minister under this Division.

Step 3.   If it is, work out in respect of the applications covered by step 1 the number of decisions to refuse to grant a visa that are standing at the end of all the proceedings (including any appeals) resulting from such decisions.

Step 4.   The agent has a high visa refusal rate in relation to a visa of that class once the number at step 3 expressed as a percentage of the number at step 1 is equal to or greater than the percentage determined by the Minister under this Division in relation to that class of visa.

Immigration assistance at visa application stage and review stage

             (3)  If:

                     (a)  the agent gives immigration assistance to a person in respect of a valid application by the person for a visa of a particular class; and

                     (b)  the agent later gives immigration assistance to the person in respect of an application (the review application) by the person for review by a review authority of a decision to refuse to grant that visa;

then the review application is not to be counted for the purposes of step 1 of the method statement.

Immigration assistance in a prescribed capacity

             (4)  An application of a kind covered by step 1 of the method statement is not to be counted if the agent gave the immigration assistance in a prescribed capacity.

Minister to have regard to any matter prescribed by the regulations

             (5)  In deciding whether or not to refer a registered migration agent to the Migration Agents Registration Authority under this section, the Minister must have regard to any matter prescribed by the regulations.

306AD  Ministerial determinations

Period for making applications

             (1)  The Minister may, by legislative instrument, determine a period for the purposes of step 1 of the method statement in section 306AC.

Minimum number of applications

             (2)  The Minister may, by legislative instrument, determine a number for the purposes of step 2 of that method statement.

Refusal percentage

             (3)  The Minister may, by legislative instrument, determine a percentage for a specified class of visa for the purposes of step 4 of that method statement.

306AE  Registered migration agent may make submissions

             (1)  If the Minister is considering referring a registered migration agent to the Migration Agents Registration Authority under section 306AC, the Minister must give the agent a written notice:

                     (a)  stating that the Minister is considering making such a decision and the reasons for it; and

                     (b)  inviting the agent to make a written submission to the Minister:

                              (i)  on the reasons for the agent having a high visa refusal rate in relation to the class of visa concerned; and

                            (ia)  on the disciplinary action that may be taken against the agent if the Minister decides to refer the agent; and

                             (ii)  on any other matter the agent considers relevant; and

                     (c)  stating that any submission must be made within the period (the objection period) of 21 days after the notice is given.

Extension

             (2)  Before the end of the objection period, the agent may, by notice in writing, request an extension of that period.

             (3)  The Minister must grant an extension of 14 days if the notice contains reasons for the request.

Minister to consider any submission

             (4)  The Minister must consider any written submission received within the objection period (or that period as extended).

306AF  Notice of referral decision under section 306AC

Notice to Migration Agents Registration Authority

             (1)  The Minister must give the Migration Agents Registration Authority written notice of a decision under section 306AC to refer a registered migration agent to the Authority.

             (2)  The notice must be given to the Authority by one of the methods specified in section 494B. The notice must specify the grounds for the referral.

          (2A)  The notice must be accompanied by a copy of any submission made to the Minister under subsection 306AE(1).

Notice to agent

             (3)  The Minister must give the registered migration agent written notice of the decision to refer him or her to the Authority.

             (4)  The notice must be given to the agent on the same day that notice of the referral is given to the Authority.

             (5)  The notice given to the agent must set out the grounds for the referral.

306AG  Migration Agents Registration Authority’s decision after a referral under section 306AC

             (1)  If the Minister refers a registered migration agent to the Migration Agents Registration Authority under section 306AC, the Authority must:

                     (a)  caution the agent; or

                     (b)  suspend the agent’s registration; or

                     (c)  cancel the agent’s registration; or

                     (d)  decide not to discipline the agent if the Authority is satisfied that there are special circumstances that justify it making the decision.

Findings of fact

             (2)  In making its decision under subsection (1), the Authority must take the findings of fact made by the Minister in relation to the decision to refer the agent to be correct.

Matters Authority must take into account

             (3)  The Authority must take only the following matters into account in making its decision under subsection (1):

                     (a)  any written submission made to the Minister under subsection 306AE(1) by the agent;

                     (b)  the findings of fact made by the Minister in relation to the decision to refer the agent;

                     (c)  the grounds given by the Minister for the decision to refer the agent.

Natural justice hearing rule

             (4)  This section, section 306AE and sections 494A to 494D are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the decision the Authority is required to make under subsection (1) of this section.

Note:          Section 306AE requires the Minister to give the agent an opportunity to make a submission before the Minister refers the agent. Sections 494A to 494D relate to the giving of documents by the Minister under this Act.

Time of decision

             (5)  The Authority must make its decision under subsection (1) as soon as possible, but not later than 28 days, after receiving notice of the referral.

Note:          Section 494C sets out when the Authority is taken to have received notice of the referral.

Notice to agent

             (6)  The Authority must give the agent written notice of its decision. The notice must set out the reasons for the decision.

             (7)  The decision takes effect at the time the agent is given written notice of it.

Note:          Section 332H sets out when the agent is taken to have been given the notice.

Decision to take no disciplinary action

             (8)  If the Authority decides not to discipline the agent, the Authority must give the Minister written notice of its decision. The notice must set out the reasons for the decision. It must be given to the Minister on the same day that notice of the decision is given to the agent.

306AGAA  Minister may refer agent again if Migration Agents Registration Authority takes no disciplinary action

             (1)  If the Migration Agents Registration Authority decides not to discipline a registered migration agent under section 306AG, the Minister must decide whether or not to refer the agent to the Authority for disciplinary action under section 306AGAC.

Minister to consider Authority’s reasons

             (2)  In making his or her decision, the Minister must consider the reasons given by the Authority for its decision not to discipline the agent.

Minister must invite and consider submissions from agent

             (3)  If the Minister is considering referring the agent to the Authority for disciplinary action, the Minister must give the agent a written notice:

                     (a)  stating that the Minister is considering making such a decision and the reasons for it; and

                     (b)  inviting the agent to make a written submission to the Minister:

                              (i)  in relation to the reasons given by the Authority for its decision not to discipline the agent; and

                             (ii)  on the disciplinary action to be taken against the agent if the Minister decides to refer the agent; and

                            (iii)  on any other matter the agent considers relevant; and

                     (c)  stating that any submission must be made within the period (the objection period) of 14 days after the notice is given.

             (4)  Before the end of the objection period, the agent may, by notice in writing, request an extension of that period.

             (5)  The Minister must grant an extension of 14 days if the notice contains reasons for the request.

             (6)  The Minister must consider any written submission received within the objection period (or that period as extended).

             (7)  The Minister must also consider any written submission made to him or her under subsection 306AE(1) in relation to his or her decision to refer the agent to the Authority under section 306AC.

Minister’s decision to refer agent

             (8)  After considering the matters mentioned in subsections (2), (6) and (7), the Minister may refer the agent to the Authority for disciplinary action.

Note 1:       If the Minister refers the agent, the Authority must discipline the agent: see section 306AGAC.

Note 2:       The Minister’s decision and the Authority’s decision are reviewable by the Administrative Appeals Tribunal: see section 306AJ.

306AGAB  Notice of referral decision under section 306AG

Notice to Migration Agents Registration Authority

             (1)  The Minister must give the Migration Agents Registration Authority written notice of a decision under section 306AGAA to refer a registered migration agent to the Authority for disciplinary action.

             (2)  The notice must be given to the Authority by one of the methods specified in section 494B. The notice must specify the grounds for the referral.

             (3)  The notice must be accompanied by a copy of any submission made to the Minister under subsection 306AGAA(3).

Notice to agent

             (4)  The Minister must give the agent written notice of the decision to refer him or her to the Authority for disciplinary action.

             (5)  The notice must be given to the agent on the same day that notice of the referral is given to the Authority.

             (6)  The notice given to the agent must set out the grounds for the referral.

306AGAC  Migration Agents Registration Authority’s disciplinary decision after a referral under section 306AGAA

             (1)  If the Minister refers a registered migration agent to the Migration Agents Registration Authority under section 306AGAA for disciplinary action, the Authority must:

                     (a)  caution the agent; or

                     (b)  suspend the agent’s registration; or

                     (c)  cancel the agent’s registration.

Findings of fact

             (2)  In making its decision, the Authority must take the findings of fact made by the Minister in relation to the following decisions (the referral decisions) to be correct:

                     (a)  the decision to refer the agent under section 306AC;

                     (b)  the decision to refer the agent under section 306AGAA.

Matters Authority must take into account

             (3)  The Authority must take only the following matters into account in making its decision under subsection (1):

                     (a)  any written submission made to the Minister under subsection 306AE(1) or 306AGAA(3) by the agent;

                     (b)  the findings of fact made by the Minister in relation to the referral decisions;

                     (c)  the grounds given by the Minister for the referral decisions.

Natural justice hearing rule

             (4)  This section, section 306AGAA and sections 494A to 494D are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the decision the Authority is required to make under subsection (1) of this section.

Note:          Section 306AGAA requires the Minister to give the agent an opportunity to make a submission before the Minister refers the agent for disciplinary action. Sections 494A to 494D relate to the giving of documents by the Minister under this Act.

Time of decision

             (5)  The Authority must make its decision under subsection (1) as soon as possible, but not later than 28 days, after receiving notice of the referral.

Note:          Section 494C sets out when the Authority is taken to have received notice of the referral.

Notice to agent

             (6)  The Authority must give the agent written notice of its decision. The notice must set out the reasons for the decision.

             (7)  The decision takes effect at the time the agent is given written notice of it.

Note:          Section 332H sets out when the agent is taken to have been given the notice.

306AGA  Cautions or suspensions

Cautions

             (1)  If the Migration Agents Registration Authority cautions a registered migration agent under section 306AG or 306AGAC, the Authority may set one or more conditions for the lifting of the caution.

Note:          Particulars of cautions are shown on the Register: see section 287.

Suspensions

             (2)  If the Authority suspends a registered migration agent’s registration under section 306AG or 306AGAC, the Authority may:

                     (a)  set a period of suspension of not more than 5 years; or

                     (b)  set a condition or conditions for the lifting of the suspension.

             (3)  If 2 or more conditions are set under paragraph (2)(b), one of them may be that at least a set period of suspension has ended.

Subdivision DReview

306AJ  Review by the Administrative Appeals Tribunal

             (1)  An application may be made to the Administrative Appeals Tribunal for review of a referral decision or a mandatory decision.

Timing rules for review of a referral decision

             (2)  However, an application for review of a referral decision may only be made:

                     (a)  if a mandatory decision is made as a result of the referral decision; and

                     (b)  within the period within which an application for review of the mandatory decision may be made.

             (3)  Accordingly, paragraph 29(1)(d) of the Administrative Appeals Tribunal Act 1975 does not apply to an application for review of a referral decision.

306AK  Stay orders

                   If the Administrative Appeals Tribunal or a court orders a stay of a decision under section 306AG or 306AGAC to cancel or suspend a registered migration agent’s registration, it is taken to be a condition of the order that the prescribed supervisory requirements apply in relation to the agent during the period of the order.

Subdivision EMaking disciplinary details available

306AL  Making disciplinary details publicly available

             (1)  If a registered migration agent is given notice of a mandatory decision, then the Migration Agents Registration Authority:

                     (a)  must as soon as possible make available in the prescribed way a statement that:

                              (i)  sets out the mandatory decision; and

                             (ii)  sets out the referral decision to which the mandatory decision relates; and

                            (iii)  specifies the grounds for the referral decision; and

                     (b)  may prepare a statement about the mandatory decision and the referral decision and make it available to one or more groups of persons, or to one or more persons, in any way the Authority thinks fit.

This subsection applies even if a stay order is made in relation to the mandatory decision or the referral decision.

Content of statement

             (3)  A statement under this section need not set out the findings on material questions of fact and need not refer to the evidence or other material on which those findings were based.

Protection from civil proceedings

             (4)  No action or other proceeding for damages lies against a person for publishing in good faith:

                     (a)  a copy of; or

                     (b)  an extract from; or

                     (c)  a summary of;

a statement under this section.

306AM  Providing disciplinary details to clients

             (1)  If the Migration Agents Registration Authority makes a mandatory decision in relation to a registered migration agent, the Authority or the Secretary may inform one or more of the clients of the agent about any one or more of the following:

                     (a)  the making of the mandatory decision;

                     (b)  the making of the referral decision that resulted in the making of the mandatory decision;

                     (c)  whether or not the agent has applied for review of the referral decision or the mandatory decision;

                     (d)  the status of any such review.

             (3)  In this section:

client has the meaning given by section 306C.

Division 3ADocuments relating to clients of inactive migration agents and deceased migration agents

306A  Objects of this Division

                   The objects of this Division are:

                     (a)  to ensure that clients of inactive migration agents are not unduly disadvantaged by the agent becoming inactive; and

                     (b)  to ensure that clients of deceased migration agents are not unduly disadvantaged by the death of the agent;

by empowering the Migration Agents Registration Authority to:

                     (c)  obtain originals or copies of client documents from inactive migration agents or from the legal personal representatives of deceased migration agents; and

                     (d)  give the originals or copies to the clients concerned.

Note:          An agent becomes inactive as a result of expiry of registration, deregistration, cancellation of registration, suspension of registration, or incapacity (see section 306B).

306B  Inactive migration agents

                   For the purposes of this Division:

                     (a)  if a person ceases to be a registered migration agent because the person’s period of registration expires under section 299:

                              (i)  the person becomes an inactive migration agent at the time of the cessation; and

                             (ii)  the person remains an inactive migration agent until the end of the period of 2 years after the cessation or until the person again becomes a registered migration agent, whichever happens first; and

                     (b)  if, at a person’s request, the Migration Agents Registration Authority deregisters the person under section 302:

                              (i)  the person becomes an inactive migration agent at the time of the deregistration; and

                             (ii)  the person remains an inactive migration agent until the end of the period of 2 years after the deregistration or until the person again becomes a registered migration agent, whichever happens first; and

                     (c)  if the Migration Agents Registration Authority cancels a person’s registration under section 303, 306AG or 306AGAC:

                              (i)  the person becomes an inactive migration agent at the time of the cancellation; and

                             (ii)  the person remains an inactive migration agent for 2 years; and

                     (d)  if the Migration Agents Registration Authority suspends a person’s registration under section 303, 306AG or 306AGAC:

                              (i)  the person becomes an inactive migration agent at the time of the suspension; and

                             (ii)  the person remains an inactive migration agent for the period of the suspension; and

                     (e)  if, while a person is a registered migration agent, the person becomes physically or mentally incapable, for a continuous period of not less than 14 days, of giving immigration assistance:

                              (i)  the person becomes an inactive migration agent at the end of that period of 14 days; and

                             (ii)  the person remains an inactive migration agent until the person ceases to be physically or mentally incapable of giving immigration assistance.

306C  Clients

                   For the purposes of this Division, if a registered migration agent gave, or anticipated giving, immigration assistance to another person:

                     (a)  the other person is a client of the registered migration agent and, if the registered migration agent dies, the other person remains a client of the deceased registered migration agent; and

                     (b)  if the registered migration agent becomes an inactive migration agent—the other person remains a client of the inactive migration agent and, if the inactive migration agent dies, the other person remains a client of the deceased inactive migration agent.

306D  Power to obtain documents from inactive migration agent

             (1)  This section applies to a person who is an inactive migration agent if the Migration Agents Registration Authority has reason to believe that:

                     (a)  before becoming an inactive migration agent and while the person was a registered migration agent, the person gave, or anticipated giving, immigration assistance to one or more clients; and

                     (b)  the inactive migration agent has in his or her possession or control documents that:

                              (i)  are or were connected with the giving, or anticipated giving, of that immigration assistance to those clients; and

                             (ii)  relate to the affairs of those clients.

             (2)  The Migration Agents Registration Authority may, by written notice given to the inactive migration agent, require him or her:

                     (a)  to make copies of any such documents and to produce those copies to the Authority within the specified period and in the specified manner; or

                     (b)  to produce to the Authority, within the specified period and in the specified manner, any such documents that are owned by those clients or that were provided to the agent by, or on behalf of, those clients.

Note:          An example of a document provided to a registered migration agent is a client’s passport.

             (3)  A notice under subsection (2) must set out the effect of sections 306G and 306H.

             (4)  A notice under subsection (2) need not identify any particular client or clients.

             (5)  A period specified in a notice under subsection (2) must end at least 14 days after the notice was given.

Note:          Section 332H sets out when the inactive migration agent is taken to have been given the notice.

306E  Power to obtain documents from representative of deceased inactive migration agent

             (1)  This section applies to the legal personal representative of a deceased person if the deceased person was an inactive migration agent at the time of death and the Migration Agents Registration Authority has reason to believe that:

                     (a)  before becoming an inactive migration agent and while the deceased person was a registered migration agent, the deceased person gave, or anticipated giving, immigration assistance to one or more clients; and

                     (b)  the legal personal representative has in his or her possession or control documents that:

                              (i)  are or were connected with the giving, or anticipated giving, of that immigration assistance to those clients; and

                             (ii)  relate to the affairs of those clients.

             (2)  The Migration Agents Registration Authority may, by written notice given to the legal personal representative, require the legal personal representative:

                     (a)  to make copies of any such documents and to produce those copies to the Authority within the specified period and in the specified manner; or

                     (b)  to produce to the Authority, within the specified period and in the specified manner, any such documents that are owned by those clients or that were provided to the registered migration agent by, or on behalf of, those clients.

Note:          An example of a document provided to a registered migration agent is a client’s passport.

             (3)  A notice under subsection (2) must set out the effect of sections 306G and 306H.

             (4)  A notice under subsection (2) need not identify any particular client or clients.

             (5)  A period specified in a notice under subsection (2) must end at least 14 days after the notice was given.

Note:          Section 332H sets out when the legal personal representative is taken to have been given the notice.

306F  Power to obtain documents from representative of deceased registered migration agent

             (1)  This section applies to the legal personal representative of a deceased person if the deceased person was a registered migration agent at the time of death and the Migration Agents Registration Authority has reason to believe that:

                     (a)  while the deceased person was a registered migration agent, the deceased person gave, or anticipated giving, immigration assistance to one or more clients; and

                     (b)  the legal personal representative has in his or her possession or control documents that:

                              (i)  are or were connected with the giving, or anticipated giving, of that immigration assistance to those clients; and

                             (ii)  relate to the affairs of those clients.

             (2)  The Migration Agents Registration Authority may, by written notice given to the legal personal representative, require the legal personal representative:

                     (a)  to make copies of any such documents and to produce those copies to the Authority within the specified period and in the specified manner; or

                     (b)  to produce to the Authority, within the specified period and in the specified manner, any such documents that are owned by those clients or that were provided to the registered migration agent by, or on behalf of, those clients.

Note:          An example of a document provided to a registered migration agent is a client’s passport.

             (3)  A notice under subsection (2) must set out the effect of sections 306G and 306H.

             (4)  A notice under subsection (2) need not identify any particular client or clients.

             (5)  A period specified in a notice under subsection (2) must end at least 14 days after the notice was given.

Note:          Section 332H sets out when the legal personal representative is taken to have been given the notice.

306G  Reasonable compensation

                   A person is entitled to be paid by the Commonwealth reasonable compensation for complying with a notice under section 306D, 306E or 306F.

306H  Failure to comply with notice

             (1)  A person commits an offence if:

                     (a)  the person is subject to a requirement under section 306D, 306E or 306F; and

                     (b)  the person contravenes the requirement.

Penalty:  60 penalty units.

             (2)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

306J  Self‑incrimination

             (1)  An individual is not excused from producing a document under section 306D, 306E or 306F on the ground that the production of the document may tend to incriminate the individual or expose the individual to a penalty.

             (2)  However:

                     (a)  any document so produced; and

                     (b)  any information or thing (including any document) obtained as a direct or indirect result of a document so produced;

is not admissible in evidence against the individual in any criminal proceedings (except proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Act or the regulations).

306K  Migration Agents Registration Authority to give client documents to clients

             (1)  If:

                     (a)  a document is given to the Migration Agents Registration Authority under section 306D by an inactive migration agent; and

                     (b)  the document relates to the affairs of a particular client of the inactive migration agent;

then, as soon as practicable, the Migration Agents Registration Authority must:

                     (c)  give the document to:

                              (i)  the client; or

                             (ii)  if the client has, by written notice given to the Authority, nominated a person to receive such documents—that person; and

                     (d)  give the client information about how to contact other registered migration agents.

             (2)  If:

                     (a)  a document is given to the Migration Agents Registration Authority under section 306E or 306F by the legal personal representative of:

                              (i)  a deceased inactive migration agent; or

                             (ii)  a deceased registered migration agent; and

                     (b)  the document relates to the affairs of a particular client of the deceased migration agent;

then, as soon as practicable, the Migration Agents Registration Authority must:

                     (c)  give the document to:

                              (i)  the client; or

                             (ii)  if the client has, by written notice given to the Authority, nominated a person to receive such documents—that person; and

                     (d)  give the client information about how to contact other registered migration agents.

306L  Compensation—constitutional safety‑net

             (1)  If:

                     (a)  apart from this section, the operation of this Division would result in the acquisition of property from a person otherwise than on just terms; and

                     (b)  the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;

the Commonwealth is liable to pay compensation of a reasonable amount to the person in respect of the acquisition.

             (2)  If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

             (3)  A provision of this Act (other than this Division) that provides for compensation for the acquisition of property does not apply to this Division.

             (4)  In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

Division 4Investigations and decision‑making by the Migration Agents Registration Authority

308  Requiring registered migration agents to give information

             (1)  The Migration Agents Registration Authority may require a registered migration agent:

                     (a)  to make a statutory declaration in answer to questions in writing by the Authority; or

                     (b)  to appear before an individual or individuals specified by the Authority and to answer questions; or

                     (c)  to provide the Authority with specified documents or records relevant to the agent’s continued registration.

             (2)  If a registered migration agent appears before one individual to answer questions, that individual must record the questions and answers and give the record to the Authority.

          (2A)  If a registered migration agent appears before 2 or more individuals to answer questions, one of them must record the questions and answers and give the record to the Authority.

             (3)  A registered migration agent is not excused from giving information or providing a document on the ground that the information or provision of the document may tend to incriminate the person.

             (4)  However:

                     (a)  any information or document provided in response to a requirement under subsection (1); and

                     (b)  any information or thing (including any document) obtained as a direct or indirect result of information or a document provided in response to a requirement under subsection (1);

is not admissible in evidence against the registered migration agent in any criminal proceedings (except proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Act or the regulations).

309  Persons may make submissions

             (1)  If the Migration Agents Registration Authority is considering refusing a registration application, it must inform the applicant of that fact and the reasons for it and invite the applicant to make a further submission in support of his or her application.

             (2)  If the Migration Agents Registration Authority is considering making a decision under section 303 to cancel or suspend a registered migration agent’s registration, or to caution such an agent, it must inform the agent of that fact and the reasons for it and invite the agent to make a submission on the matter.

             (3)  In this section:

submission means:

                     (a)  a statutory declaration; or

                     (b)  a written argument.

310  Persons may appear before Migration Agents Registration Authority

             (1)  This section applies where the Migration Agents Registration Authority has invited a submission on a matter under section 309.

             (2)  If the Migration Agents Registration Authority does not receive a submission, it may decide the matter on the information before it.

             (3)  If the Migration Agents Registration Authority receives a submission, it may:

                     (a)  decide the matter; or

                     (b)  give the person who made the submission the opportunity to appear before it and then decide the matter.

311  Migration Agents Registration Authority not bound by legal forms etc.

                   The Migration Agents Registration Authority, in considering a registration application or a possible disciplinary action under section 303:

                     (a)  is not bound by technicalities, legal forms or rules of evidence; and

                     (b)  must act according to substantial justice and the merits of the case.

Division 4ADisciplining former registered migration agents

Subdivision AComplaints about provision of immigration assistance

311A  Barring former registered migration agents from being registered for up to 5 years

             (1)  The Migration Agents Registration Authority may decide to bar a former registered migration agent from being a registered migration agent for a period if, after investigating a complaint about him or her in relation to his or her provision of immigration assistance while he or she was a registered migration agent, it is satisfied that the subject matter of the complaint is made out.

Note:          Before making such a decision, the Authority must invite the former registered migration agent to make a submission: see section 311D.

             (2)  The period must not be more than 5 years starting on the day of the Authority’s decision.

311B  Notice of disciplinary decision

Notice to former agent

             (1)  The Migration Agents Registration Authority must give a former registered migration agent written notice of a decision made under section 311A in relation to the former agent.

             (2)  The notice must set out the reasons for the decision and the period that the former agent is barred from being a registered migration agent.

When decision takes effect

             (3)  The decision takes effect at the time the former agent is given written notice of it.

Note:          Section 332H sets out when the former agent is taken to have been given the notice.

311C  Making disciplinary details publicly available

             (1)  If a former registered migration agent is given notice of a decision under section 311A, then the Migration Agents Registration Authority:

                     (a)  must as soon as possible make available in the prescribed way a statement that sets out the decision and specifies the grounds for the decision; and

                     (b)  may prepare a statement about the decision and make it available to one or more groups of persons, or to one or more persons, in any way the Authority thinks fit.

This subsection applies even if a stay order is made in relation to the decision.

Content of statement

             (3)  A statement under this section need not set out the findings on material questions of fact and need not refer to the evidence or other material on which those findings were based.

Protection from civil proceedings

             (4)  No action or other proceeding for damages lies against a person for publishing in good faith:

                     (a)  a copy of; or

                     (b)  an extract from; or

                     (c)  a summary of;

a statement under this section.

311D  Former registered migration agent may make a submission etc.

Invitation to make submission

             (1)  Before making a decision under subsection 311A(1), the Migration Agents Registration Authority must give the former registered migration agent a written notice:

                     (a)  stating that the Authority proposes to make such a decision and the reasons for it; and

                     (b)  inviting him or her to make a written submission to the Authority on the matter within 28 days after the notice is given.

Note:          Section 332H sets out when the former agent is taken to have been given the notice.

Authority to consider any submission

             (2)  The Authority must consider any written submission received within that period.

No submission received

             (3)  If the Authority does not receive a written submission, it may decide the matter on the information before it.

Submission received

             (4)  If the Authority receives a written submission, it may:

                     (a)  decide the matter; or

                     (b)  give the former registered migration agent the opportunity to appear before it and then decide the matter.

311E  Authority not bound by legal forms etc.

                   In considering making a decision under subsection 311A(1), the Migration Agents Registration Authority:

                     (a)  is not bound by technicalities, legal forms or rules of evidence; and

                     (b)  must act according to substantial justice and the merits of the case.

311EA  Requiring former registered migration agents to give information or documents

             (1)  This section applies if the Migration Agents Registration Authority is considering making a decision under section 311A to bar a former registered migration agent from being a registered migration agent for a period.

             (2)  The Authority may, by written notice given to the former agent, require him or her to provide the Authority with prescribed information or prescribed documents within the specified period and in the specified manner.

             (3)  A period specified in a notice under this section must end at least 14 days after the notice was given.

Note:          Section 332H sets out when the former agent is taken to have been given the notice.

Offence

             (4)  A person commits an offence if:

                     (a)  the person is subject to a requirement under this section; and

                     (b)  the person contravenes the requirement.

Penalty:  60 penalty units.

             (5)  An offence against subsection (4) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

Self‑incrimination

             (6)  A person is not excused from giving information or providing a document on the ground that the information or provision of the document may tend to incriminate the person.

             (7)  However:

                     (a)  any information or document provided in response to a requirement under subsection (2); and

                     (b)  any information or thing (including any document) obtained as a direct or indirect result of information or a document provided in response to a requirement under subsection (2);

is not admissible in evidence against the person in any criminal proceedings (except proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Act or the regulations).

311F  Review by the Administrative Appeals Tribunal

                   Subject to the Administrative Appeals Tribunal Act 1975, an application may be made to the Administrative Appeals Tribunal for review of a decision by the Migration Agents Registration Authority under subsection 311A(1).

Subdivision BEngaging in vexatious activity

311G  Definitions

                   In this Subdivision:

mandatory decision means a decision of the Migration Agents Registration Authority under section 311L.

referral decision means a decision of the Minister under section 311H.

311H  Minister may refer former registered migration agent for disciplinary action

             (1)  The Minister may refer a former registered migration agent to the Migration Agents Registration Authority for disciplinary action if, in relation to his or her provision of immigration assistance while he or she was a registered migration agent, he or she had a high visa refusal rate in relation to a visa of a particular class.

Note 1:       If the Minister is considering doing so, the Minister must invite the former agent to make a submission on the matter and must consider any submission that is made: see section 311J.

Note 2:       If the Minister does refer a former agent, the Authority must discipline the former agent: see section 311L.

Note 3:       The Minister’s decision and the Authority’s decision are reviewable by the Administrative Appeals Tribunal: see section 311M.

             (2)  In deciding whether or not to refer a former registered migration agent to the Migration Agents Registration Authority for disciplinary action, the Minister must have regard to any matter prescribed by the regulations.

311J  Former registered migration agent may make submissions

             (1)  If the Minister is considering referring a former registered migration agent to the Migration Agents Registration Authority for disciplinary action, the Minister must give the former agent a written notice:

                     (a)  stating that the Minister is considering making such a decision and the reasons for it; and

                     (b)  inviting the former agent to make a written submission to the Minister:

                              (i)  on the reasons for the former agent having a high visa refusal rate in relation to the class of visa concerned; and

                            (ia)  on the period the former agent is to be barred from being a registered migration agent if the Minister decides to refer the former agent; and

                             (ii)  on any other matter the former agent considers relevant; and

                     (c)  stating that any submission must be made within the period (the objection period) of 21 days after the notice is given.

Extension

             (2)  Before the end of the objection period, the former agent may, by notice in writing, request an extension of that period.

             (3)  The Minister must grant an extension of 14 days if the notice contains reasons for the request.

Minister to consider any submission

             (4)  The Minister must consider any written submission received within the objection period (or that period as extended).

311K  Notice of referral decision

Notice to Migration Agents Registration Authority

             (1)  The Minister must give the Migration Agents Registration Authority written notice of a decision to refer a former registered migration agent to the Authority for disciplinary action.

             (2)  The notice must be given to the Authority by one of the methods specified in section 494B. The notice must specify the grounds for the referral.

          (2A)  The notice must be accompanied by a copy of any submission made to the Minister under subsection 311J(1).

Notice to former agent

             (3)  The Minister must give the former registered migration agent written notice of the decision to refer him or her to the Authority for disciplinary action.

             (4)  The notice must be given to the former agent on the same day that notice of the referral is given to the Authority.

             (5)  The notice given to the former agent must set out the grounds for the referral.

311L  Taking of disciplinary action

             (1)  If the Minister refers a former registered migration agent to the Migration Agents Registration Authority for disciplinary action, the Authority must bar him or her from being a registered migration agent for a period of not more than 5 years starting on the day that the Authority’s decision takes effect.

Findings of fact

             (2)  In making its decision, the Authority must take the findings of fact made by the Minister in relation to the referral decision to be correct.

Matters Authority must take into account

             (3)  The Authority must take only the following matters into account in making its decision under subsection (1):

                     (a)  any written submission made to the Minister under subsection 311J(1) by the former agent;

                     (b)  the findings of fact made by the Minister in relation to the referral decision;

                     (c)  the grounds given by the Minister for the referral decision.

Natural justice hearing rule

             (4)  This section, section 311J and sections 494A to 494D are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the decision the Authority is required to make under subsection (1) of this section.

Note:          Section 311J requires the Minister to give the former agent an opportunity to make a submission before the Minister refers the former agent for disciplinary action. Sections 494A to 494D relate to the giving of documents by the Minister under this Act.

Time of decision

             (5)  The Authority must make its decision under subsection (1) as soon as possible, but not later than 14 days, after receiving notice of the referral.

Note:          Section 494C sets out when the Authority is taken to have received notice of the referral.

Notice to agent

             (6)  The Authority must give the former agent written notice of its decision. The notice must set out the reasons for the decision.

             (7)  The decision takes effect at the time the former agent is given written notice of it.

Note:          Section 332H sets out when the former agent is taken to have been given the notice.

311M  Review by the Administrative Appeals Tribunal

                   An application may be made to the Administrative Appeals Tribunal for review of a referral decision or a mandatory decision.

311P  Making disciplinary details publicly available

             (1)  If a former registered migration agent is given notice of a mandatory decision, then the Migration Agents Registration Authority:

                     (a)  must as soon as possible make available in the prescribed way a statement that:

                              (i)  sets out the mandatory decision; and

                             (ii)  sets out the referral decision to which the mandatory decision relates; and

                            (iii)  specifies the grounds for the referral decision; and

                     (b)  may prepare a statement about the mandatory decision and the referral decision and make it available to one or more groups of persons, or to one or more persons, in any way the Authority thinks fit.

This subsection applies even if a stay order is made in relation to the mandatory decision or the referral decision.

Content of statement

             (3)  A statement under this section need not set out the findings on material questions of fact and need not refer to the evidence or other material on which those findings were based.

Protection from civil proceedings

             (4)  No action or other proceeding for damages lies against a person for publishing in good faith:

                     (a)  a copy of; or

                     (b)  an extract from; or

                     (c)  a summary of;

a statement under this section.

Division 5Obligations of registered migration agents

312  Notification obligations

             (1)  A registered migration agent must notify the Migration Agents Registration Authority in writing within 14 days after any of the following events occurs:

                     (a)  he or she becomes bankrupt;

                     (b)  he or she applies to take the benefit of any law for the relief of bankrupt or insolvent debtors;

                     (c)  he or she compounds with his or her creditors;

                     (d)  he or she makes an assignment of remuneration for the benefit of his or her creditors;

                     (e)  he or she is convicted of an offence under a law of the Commonwealth or of a State or Territory;

                    (ea)  if he or she paid, in relation to his or her current period of registration, the charge payable under regulation 5 of the Migration Agents Registration Application Charge Regulations 1998—he or she begins to give immigration assistance:

                              (i)  on a commercial, or for‑profit, basis; or

                             (ii)  as a member of, or a person associated with, an organisation that operates on a commercial, or for‑profit, basis;

                      (f)  he or she becomes an employee, or becomes the employee of a new employer, and will give immigration assistance in that capacity;

                    (fa)  he or she becomes a member of a partnership and will give immigration assistance in that capacity;

                     (g)  if he or she is a member or an employee of a partnership and gives immigration assistance in that capacity—a member of the partnership becomes bankrupt;

                     (h)  if he or she is an executive officer or an employee of a corporation and gives immigration assistance in that capacity:

                              (i)  a receiver of its property or part of its property is appointed; or

                            (iii)  it begins to be wound up.

Penalty:  100 penalty units.

             (2)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (3)  The day on which the event mentioned in paragraph (1)(ea) occurs is to be worked out in accordance with the Migration Agents Registration Application Charge Regulations 1998.

312A  Notification of giving of immigration assistance to visa applicants

             (1)  If:

                     (a)  a registered migration agent gives immigration assistance to a visa applicant in relation to the visa application; and

                     (b)  the agent gives the assistance after having agreed to represent the applicant;

the agent must notify the Department in accordance with the regulations and within the period worked out in accordance with the regulations.

Penalty:  60 penalty units.

             (2)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

312B  Notification of giving of immigration assistance to review applicants

             (1)  If:

                     (a)  a registered migration agent gives immigration assistance to a person in respect of a review application made by the person; and

                     (b)  the agent gives the assistance after having agreed to represent the person;

the agent must notify the review authority concerned in accordance with the regulations and within the period worked out in accordance with the regulations.

Penalty:  60 penalty units.

             (2)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (3)  In this section:

review application means an application for review by a review authority of a decision to refuse to grant a person a visa.

313  Persons charged for services to be given detailed statement of services

             (1)  A registered migration agent is not entitled to be paid a fee or other reward for giving immigration assistance to another person (the assisted person) unless the agent gives the assisted person a statement of services.

             (2)  A statement of services must set out:

                     (a)  particulars of each service performed; and

                     (b)  the charge made in respect of each such service.

             (3)  An assisted person may recover the amount of a payment as a debt due to him or her if he or she:

                     (a)  made the payment to a registered migration agent for giving immigration assistance; and

                     (b)  did not receive a statement of services before making the payment; and

                     (c)  does not receive a statement of services within the period worked out in accordance with the regulations.

             (4)  This section does not apply to the giving of immigration legal assistance by a lawyer.

314  Code of Conduct for migration agents

             (1)  The regulations may prescribe a Code of Conduct for migration agents.

             (2)  A registered migration agent must conduct himself or herself in accordance with the prescribed Code of Conduct.

Division 6Migration Agents Registration Authority

315  Appointing the Migration Institute of Australia Limited as the Migration Agents Registration Authority

             (1)  The Minister may make a written instrument appointing the Institute for the purposes of the definition of Migration Agents Registration Authority in section 275.

Note:          The Minister may also revoke the appointment. See subsection 33(3) of the Acts Interpretation Act 1901.

             (2)  An appointment or revocation of an appointment does not affect an earlier exercise of a power, or performance of a function, of the Migration Agents Registration Authority. Anything done by, or in relation to, the person who was the Authority before the appointment or revocation, is taken to have been done by, or in relation to, the person who is the Authority afterwards.

316  Functions of Migration Agents Registration Authority

             (1)  The functions of the Migration Agents Registration Authority are:

                     (a)  to deal with registration applications in accordance with this Part; and

                     (b)  to monitor the conduct of registered migration agents in their provision of immigration assistance and of lawyers in their provision of immigration legal assistance; and

                     (c)  to investigate complaints in relation to the provision of immigration assistance by registered migration agents; and

                     (d)  to take appropriate disciplinary action against registered migration agents or former registered migration agents; and

                     (e)  to investigate complaints about lawyers in relation to their provision of immigration legal assistance, for the purpose of referring appropriate cases to professional associations for possible disciplinary action; and

                      (f)  to inform the appropriate prosecuting authorities about apparent offences against this Part or Part 4; and

                     (g)  to monitor the adequacy of any Code of Conduct; and

                     (h)  such other functions as are conferred on the Authority by this Part.

          (1A)  In performing its function under paragraph (1)(c), the Authority may start, or complete, an investigation of a complaint about a person at a time when he or she is no longer a registered migration agent.

          (1B)  However, the Authority can investigate a complaint about a former registered migration agent only if the complaint is received within 12 months after he or she ceased to be a registered migration agent.

             (2)  So long as the Institute is appointed under section 315, the Migration Agents Registration Authority also has the function of advising the Minister on the adequacy of any Code of Conduct.

317  General powers of the Migration Agents Registration Authority

                   The Migration Agents Registration Authority has power to do all things necessarily or conveniently done for, or in connection with, the performance of its functions.

318  Power to refer people to mediation

                   If the Migration Agents Registration Authority is investigating a complaint about a person who is or was a registered migration agent, the Authority may refer the complainant and the person to a mediator to resolve the matter complained of.

319  Power to refer lawyers’ conduct to other authorities

             (1)  The Migration Agents Registration Authority may refer to an authority responsible for disciplining lawyers the conduct of a registered migration agent, or a former registered migration agent, who holds a practising certificate (however described) entitling him or her to practise as a lawyer.

Conduct of registered migration agents

             (2)  If the Migration Agents Registration Authority refers the conduct of a registered migration agent, it may not take action against the agent under section 303 on the basis of that conduct.

Note:          Section 303 allows the Migration Agents Registration Authority to caution a registered migration agent or suspend or cancel a registered migration agent’s registration.

Conduct of former registered migration agents

             (3)  If the Migration Agents Registration Authority refers the conduct of a former registered migration agent, it may not take action against him or her under subsection 311A(1) on the basis of that conduct.

Note:          Subsection 311A(1) allows the Authority to bar a former registered migration agent from being a registered migration agent for a period of not more than 5 years starting on the day of its decision.

319A  Institute may delegate powers and functions

             (1)  While the Institute is appointed under section 315, the Institute may, by writing, delegate any or all of the Migration Agents Registration Authority’s functions or powers under this Part to:

                     (a)  a committee of the Institute; or

                     (b)  an officer of the Institute; or

                     (c)  an employee of the Institute.

Directions

             (2)  In performing a delegated function or exercising a delegated power, a delegate must comply with any written directions given by the Institute.

How committee to perform function or exercise power

             (3)  A function or power so delegated to a committee may be performed or exercised by a majority of the members of the committee and may not otherwise be performed or exercised under the delegation.

320  Minister may delegate powers and functions

             (1)  The Minister may delegate any of the Migration Agents Registration Authority’s powers or functions under this Part to a person in the Department who is appointed or engaged under the Public Service Act 1999, for any period when the Institute is not appointed under section 315.

             (2)  A delegation must be in writing signed by the Minister.

             (3)  If the Minister delegates a power or function of the Migration Agents Registration Authority, the Minister may disclose to the delegate personal information to help the delegate exercise the power or perform the function.

321  Disclosure of personal information to the Migration Agents Registration Authority

Overview

             (1)  This section authorises certain disclosures of personal information for the purpose of facilitating or expediting the exercise of the powers, or performance of the functions, of the Migration Agents Registration Authority.

Disclosure by the Department to the Authority

             (2)  The Department may make a disclosure to the Migration Agents Registration Authority.

Disclosure by the Minister

             (3)  If the Minister appoints the Institute under section 315, the Minister may make a disclosure to the Institute or an officer or employee of the Institute.

Note:          Section 315 lets the Minister appoint the Institute for the purposes of the definition of Migration Agents Registration Authority in section 275.

Preliminary disclosure to the Institute

             (4)  The Department or the Minister may make a disclosure to the Institute or an officer or employee of the Institute at a time when the Minister has made an instrument appointing the Institute under section 315 but the instrument has not taken effect.

Section not limited to information obtained after commencement

             (5)  The Department or the Minister may disclose information whether it was obtained before or after the commencement of this section.

321A  Disclosure of personal information by the Migration Agents Registration Authority

             (1)  The Migration Agents Registration Authority may disclose personal information about a registered migration agent, or an inactive migration agent, to any of the following (the recipient):

                     (a)  the Secretary or an authorised officer;

                     (b)  a review authority.

             (2)  However, the Authority may do so only in the prescribed circumstances.

             (3)  The regulations may prescribe circumstances in which the recipient may use or disclose personal information disclosed under subsection (1).

             (4)  In this section:

inactive migration agent has the meaning given by section 306B.

322  Annual report

             (1)  If an appointment of the Institute under section 315 is in force at the end of a financial year, the Institute must give a report on the administration of this Part during the financial year to the Minister for presentation to the Parliament.

Note:          Section 34C of the Acts Interpretation Act 1901 explains when the Institute must give the report to the Minister, and when the Minister must cause the report to be tabled in each House of the Parliament.

             (2)  If an appointment of the Institute under section 315 is not in force at the end of the financial year, the Minister must cause to be tabled in each House of the Parliament a report on the administration of this Part during the financial year, before the end of the 15th sitting day of that House after the 31 December immediately following the financial year.

Division 6ARegistration application fees and registration status charges

332A  Collection of registration status charge

When charge due and payable

             (1)  Registration status charge is due and payable at the time worked out in accordance with a determination made, by legislative instrument, by the Migration Agents Registration Authority.

Recovery of charge

             (3)  Registration status charge that has become due for payment may be recovered by the Migration Agents Registration Authority, on behalf of the Commonwealth, as a debt due to the Commonwealth.

332B  Payments to Migration Institute of Australia Limited

             (1)  There is payable to the Institute out of the Consolidated Revenue Fund an amount equal to the sum of registration application fees collected while an instrument under section 315 appointing the Institute is in force.

          (1A)  There is payable to the Institute out of the Consolidated Revenue Fund an amount equal to the sum of registration status charges collected (including amounts recovered under section 332A) while an instrument under section 315 appointing the Institute is in force.

             (2)  The Consolidated Revenue Fund is appropriated for the purposes of this section.

Division 7Other things

332C  Removing disciplinary details—registered migration agents

             (1)  The Migration Agents Registration Authority must remove any of the following details that are made available by electronic means under this Part:

                     (a)  any statement relating to the cancellation or suspension of a registered migration agent’s registration;

                     (b)  any statement about the cautioning of such an agent.

Time for removal

             (2)  The Authority must remove the details within the period worked out in accordance with the regulations.

             (3)  The regulations may prescribe different periods in relation to details about cancellations, suspensions or cautions.

332D  Removing disciplinary details—former registered migration agents

             (1)  The Migration Agents Registration Authority must remove any statement that is made available by electronic means under section 311C or 311P.

             (2)  The Authority must remove the statement within the period worked out in accordance with the regulations.

332E  Protection from civil proceedings

Complaints about registered migration agents

             (1)  No action or other proceeding for damages lies against a person in respect of loss, damage or injury of any kind suffered by another person because of any of the following acts done in good faith:

                     (a)  the making of a complaint to the Migration Agents Registration Authority in relation to the provision of immigration assistance by a registered migration agent;

                     (b)  the making of a statement to, or the giving of a document or information to, the Authority in connection with the investigation of such a complaint.

Complaints about persons who are not registered migration agents

             (2)  No action or other proceeding for damages lies against a person in respect of loss, damage or injury of any kind suffered by another person because of any of the following acts done in good faith:

                     (a)  the making of a complaint to the Department in relation to the provision of immigration assistance by a person who is not a registered migration agent;

                     (b)  the making of a statement to, or the giving of a document or information to, the Department in connection with the investigation of such a complaint;

                     (c)  the investigation of such a complaint.

Institute etc.

             (3)  The Institute, or an officer or employee of the Institute, is not liable to an action or other proceeding for damages for or in relation to any of the following acts done in good faith:

                     (a)  the performance or purported performance of any function conferred on the Migration Agents Registration Authority under this Part;

                     (b)  the exercise or purported exercise of any power conferred on the Authority under this Part.

Commonwealth etc.

             (4)  None of the following:

                     (a)  the Commonwealth;

                     (b)  the Minister;

                     (c)  an officer;

                     (d)  any other person;

is liable to an action or other proceeding for damages for or in relation to any of the following acts done in good faith:

                     (e)  the performance or purported performance of any function conferred on the Minister under this Part;

                      (f)  the exercise or purported exercise of any power conferred on the Minister under this Part.

332F  Disclosure of personal information by the Secretary

             (1)  The Secretary may disclose personal information about a registered migration agent, or an inactive migration agent, to a review authority.

             (2)  However, the Secretary may do so only in the prescribed circumstances.

             (3)  The regulations may prescribe circumstances in which the review authority may use or disclose personal information disclosed under subsection (1).

             (4)  In this section:

inactive migration agent has the meaning given by section 306B.

332G  Disclosure of personal information by a review authority

Discretionary disclosure

             (1)  A review authority may disclose personal information about a registered migration agent, or an inactive migration agent, to the Secretary or an authorised officer.

             (2)  However, a review authority may do so only in the prescribed circumstances.

             (3)  The regulations may prescribe circumstances in which the Secretary or authorised officer may use or disclose personal information disclosed under subsection (1).

Mandatory disclosure

             (4)  If a registered migration agent notifies a review authority that the agent has given immigration assistance to a person in respect of a review application made by the person, the review authority must notify the Department, in accordance with the regulations, that the agent has given immigration assistance to the person in respect of the review application.

Definitions

             (5)  In this section:

inactive migration agent has the meaning given by section 306B.

review application means an application for review by a review authority of a decision to refuse to grant a person a visa.

332H  Giving of notices under this Part

             (1)  If a provision of this Part requires or permits the Migration Agents Registration Authority to give a notice to a person (the recipient):

                     (a)  the Authority must give the notice to the recipient by 1 of the 4 methods set out in the following table; and

                     (b)  the time at which the recipient is taken to have been given the notice is the time set out in the table.

 

Giving of notices under this Part

Item

Methods of giving notices

Timing rule

1

Handing the notice to the recipient

When it is handed to the recipient

2

Handing the notice to another person who:

(a) is at the last residential or business address provided to the Authority by the recipient for the purposes of receiving notices; and

(b) appears to live there (in the case of a residential address) or work there (in the case of a business address); and

(c) appears to be at least 16 years of age

When it is handed to the other person

3

Dating the notice, and then dispatching it:

(a) within 3 working days (in the place of dispatch) of the date of the notice; and

(b) by prepaid post or by other prepaid means; and

(c) to:

(i) the last address for service provided to the Authority by the recipient for the purposes of receiving notices; or

(ii) the last residential or business address provided to the Authority by the recipient for the purposes of receiving notices

(a) if the notice was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the notice; or

(b) in any other case—21 days after the date of the notice

4

Transmitting the notice by:

(a) fax; or

(b) email; or

(c) other electronic means;

to the last fax number, email address or other electronic address, as the case may be, provided to the Authority by the recipient for the purposes of receiving notices

At the end of the day on which the notice is transmitted

             (2)  This section has effect despite any provision in the Electronic Transactions Act 1999.

Part 4<