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...................................................... 43
278........................ Relation by employment................................................... 45
278A..................... Eligibility for restricted legal practitioners......................... 46
279........................ Part VIIC of the Crimes Act 1914 to apply to this Part..... 48
Division 2—Restrictions on giving of immigration assistance and making of immigration representations 49
280........................ Restrictions on giving of immigration assistance.............. 49
281........................ Restriction on charging fees for immigration assistance... 51
282........................ Restriction on charging fees for immigration representations.. 51
283........................ False representation that a person is a registered migration agent 53
284........................ Restriction on self‑advertising of the giving of immigration assistance 53
285........................ Restriction on other advertising of immigration assistance 54
Division 3—Registration of migration agents 56
287........................ Register of Migration Agents........................................... 56
288........................ Application for registration............................................... 57
288A..................... Publishing requirement..................................................... 59
288B...................... Requirement to provide further information etc................ 59
289........................ Registration....................................................................... 61
289A..................... Applicant must not be registered if academic and vocational requirements are not satisfied 62
289B...................... Applications by Australian legal practitioners................... 62
290........................ Applicant must not be registered if not a person of integrity or not fit and proper 63
290A..................... Applicant must not be registered if continuing professional development requirements are not satisfied 64
290B...................... Applicant must not be registered if any unpaid registration status charge 65
291........................ Applicant must not be registered if registration refused in past year 65
291A..................... Applicant must not be registered if suspension would be in effect 65
292........................ Applicant must not be registered if registration cancelled in past 5 years 66
292A..................... Applicant must not be registered if any barring period has not ended 66
292B...................... Applicant must not be registered unless he or she holds appropriate professional indemnity insurance 66
293........................ Applicant under 18 must not be registered........................ 67
294........................ Applicant must not be registered if not an Australian citizen, permanent resident or New Zealander with special visa........................................................................ 67
295........................ Notice of refusal of application......................................... 67
299........................ Period of registration........................................................ 67
300........................ Automatic continuation of registration.............................. 68
301........................ Migration Agents Registration Authority must warn of expiry 70
302........................ Automatic deregistration................................................... 70
302A..................... Cancellation of registration—Australian legal practitioners 70
303........................ Disciplining registered migration agents........................... 71
304........................ Period of suspension........................................................ 72
304A..................... Conditions for lifting cautions.......................................... 72
305........................ Notice of disciplinary decision.......................................... 72
305A..................... Making disciplinary details publicly available................... 73
305B...................... Providing disciplinary details to clients............................. 73
305C...................... Requiring registered migration agents to give information or documents 74
306........................ Review by the Administrative Appeals Tribunal.............. 75
306AA.................. Stay orders........................................................................ 75
Division 3A—Documents relating to clients of inactive migration agents and deceased migration agents 76
306A..................... Objects of this Division.................................................... 76
306B...................... Inactive migration agents.................................................. 76
306C...................... Definition of client............................................................ 78
306D..................... Power to obtain documents from inactive migration agent 78
306E...................... Power to obtain documents from representative of deceased inactive migration agent 79
306F...................... Power to obtain documents from representative of deceased registered migration agent 80
306G..................... Reasonable compensation................................................. 81
306H..................... Failure to comply with notice............................................ 81
306J....................... Self‑incrimination............................................................. 82
306K...................... Migration Agents Registration Authority to give client documents to clients 82
306L...................... Compensation—constitutional safety‑net.......................... 83
Division 4—Investigations and decision‑making by the Migration Agents Registration Authority 85
308........................ Requiring registered migration agents to give information 85
309........................ Persons may make submissions....................................... 86
310........................ Persons may appear before Migration Agents Registration Authority 86
311........................ Migration Agents Registration Authority not bound by legal forms etc. 87
Division 4A—Disciplining former registered migration agents 88
311A..................... Barring former registered migration agents from being registered for up to 5 years 88
311B...................... Notice of disciplinary decision.......................................... 88
311C...................... Making disciplinary details publicly available................... 89
311D..................... Former registered migration agent may make a submission etc. 89
311E...................... Authority not bound by legal forms etc............................ 90
311EA................... Requiring former registered migration agents to give information or documents 91
311F...................... Review by the Administrative Appeals Tribunal.............. 92
Division 5—Obligations of registered migration agents 93
312........................ Notification obligations..................................................... 93
312A..................... Notification of giving of immigration assistance to visa applicants 94
312B...................... Notification of giving of immigration assistance to review applicants 95
313........................ Persons charged for services to be given detailed statement of services 95
314........................ Code of Conduct for migration agents.............................. 96
Division 6—Migration Agents Registration Authority 97
315........................ Migration Agents Registration Authority—nature, powers and functions 97
316........................ Functions of Migration Agents Registration Authority.... 97
317........................ General powers of the Migration Agents Registration Authority 98
318........................ Power to refer people to mediation................................... 98
319........................ Referral of conduct of certain migration agents to legal disciplinary authorities 98
320........................ Minister may delegate powers and functions.................... 99
321A..................... Disclosure of personal information by the Migration Agents Registration Authority 99
Division 6A—Registration application fees and registration status charges 101
332A..................... Collection of registration status charge........................... 101
Division 7—Other things 102
332C...................... Removing disciplinary details—registered migration agents 102
332D..................... Removing disciplinary details—former registered migration agents 102
332E...................... Protection from civil proceedings................................... 102
332F...................... Disclosure of personal information by the Secretary...... 104
332G..................... Disclosure of personal information by a review authority 104
332H..................... Giving of notices under this Part.................................... 105
Division 8—Transitional arrangements for Australian legal practitioners 107
333........................ Definitions...................................................................... 107
333A..................... Restrictions on giving immigration assistance and making immigration representations 107
333B...................... Registered migration agents who were unrestricted legal practitioners immediately before the Division 8 commencement day......................................................... 107
333C...................... Persons who were restricted legal practitioners immediately before the Division 8 commencement day 108
333D..................... Registration applications made before the Division 8 commencement day 108
333E...................... Events required to be notified under s 312(4)................. 109
Part 4—Offences relating to decisions under Act 110
334........................ Offences in relation to false or misleading statements regarding the making of decisions 110
335........................ Offence of undertaking, for reward, to cause decisions to be made etc. 110
336........................ Court may order reparation for loss suffered.................. 111
Part 4A—Obligations relating to identifying information 112
Division 1—Preliminary 112
336A..................... Definitions...................................................................... 112
336B...................... Application..................................................................... 113
Division 2—Accessing identifying information 114
336C...................... Accessing identifying information.................................. 114
336D..................... Authorising access to identifying information................ 114
Division 3—Disclosing identifying information 116
336E...................... Disclosing identifying information................................. 116
336F...................... Authorising disclosure of identifying information to foreign countries etc. 119
336FA................... Disclosure of certain personal identifiers to selected individuals 122
336FB................... Disclosure of other relevant information to selected individuals 123
336FC................... Disclosure of certain personal identifiers to the general public 123
336FD................... Disclosure of other relevant information to the general public 125
Division 4—Modifying and impairing identifying information 126
336G..................... Unauthorised modification of identifying information.... 126
336H..................... Unauthorised impairment of identifying information...... 126
336J....................... Meanings of unauthorised modification and unauthorised impairment etc. 126
Division 5—Destroying identifying information 128
336K...................... Destroying identifying information................................. 128
336L...................... Identifying information that may be indefinitely retained 129
Part 5—Review of Part 5‑reviewable decisions 131
Division 1—Interpretation 131
336M..................... Simplified outline of this Part......................................... 131
336N..................... Scope of this Part............................................................ 132
337........................ Interpretation................................................................... 132
Division 2—Part 5‑reviewable decisions 134
338........................ Definition of Part 5‑reviewable decision........................ 134
339........................ Conclusive certificates.................................................... 137
Division 3—Part 5‑reviewable decisions: Tribunal review 138
347........................ Application for review of Part 5‑reviewable decisions... 138
348........................ Tribunal to review Part 5‑reviewable decisions.............. 139
349........................ Tribunal powers on review of Part 5‑reviewable decisions 140
350........................ Review of assessments made under section 93............... 140
351........................ Minister may substitute more favourable decision.......... 141
352........................ Tribunal to notify Secretary of application for review of Part 5‑reviewable decisions 142
Division 4—Part 5‑reviewable decisions: Tribunal powers 144
353........................ Tribunal’s way of operating............................................ 144
353B...................... Guidance decisions......................................................... 144
Division 5—Part 5‑reviewable decisions: conduct of review 145
357A..................... Exhaustive statement of natural justice hearing rule........ 145
358........................ Documents to be given to the Tribunal........................... 145
359........................ Tribunal may seek information....................................... 145
359AA.................. Information and invitation given orally by Tribunal while applicant appearing 146
359A..................... Information and invitation given in writing by Tribunal. 147
359B...................... Requirements for written invitation etc........................... 148
359C...................... Failure to give information, comments or response in response to written invitation 149
360........................ Tribunal must invite applicant to appear.......................... 149
360A..................... Notice of invitation to appear.......................................... 150
361........................ Applicant may request Tribunal to call witness and obtain written material 150
362........................ Certain bridging visa decisions—request to call witnesses 151
362A..................... Applicant entitled to have access to written material before Tribunal 152
362B...................... Failure of applicant to appear before Tribunal................. 152
362C...................... Failure to appear—Tribunal’s decisions, written statements and notifying the applicant 154
363........................ Powers of the Tribunal etc.............................................. 156
363A..................... Tribunal does not have power to permit a person to do something he or she is not entitled to do 156
364........................ Tribunal’s power to take evidence.................................. 157
365........................ Review to be in public.................................................... 157
366........................ Oral evidence by telephone etc........................................ 158
366A..................... Applicant may be assisted by another person while appearing before Tribunal 158
366B...................... Other persons not to be assisted or represented while appearing before Tribunal 159
366C...................... Interpreters...................................................................... 159
366D..................... Examination and cross‑examination not permitted.......... 160
367........................ Certain bridging visa decisions—to be made within prescribed period 160
Division 6—Part 5‑reviewable decisions: Tribunal decisions 161
368........................ Tribunal’s decision and written statement....................... 161
368A..................... Notifying parties of Tribunal’s decision (decision not given orally) 162
368D..................... Tribunal’s decisions given orally.................................... 163
Division 7—Part 5‑reviewable decisions: offences 166
370........................ Failure to comply with summons.................................... 166
371........................ Refusal to be sworn or to answer questions................... 166
Division 8—Part 5‑reviewable decisions: miscellaneous 168
375........................ Restrictions on disclosure of certain information etc....... 168
375A..................... Certain information only to be disclosed to Tribunal...... 168
376........................ Tribunal’s discretion in relation to disclosure of certain information etc. 169
378........................ Tribunal may restrict publication of certain matters......... 170
Division 8A—Part 5‑reviewable decisions: giving and receiving documents 171
379AA.................. Giving documents by Tribunal where no requirement to do so by section 379A or 379B method 171
379A..................... Methods by which Tribunal gives documents to a person other than the Secretary 172
379B...................... Methods by which Tribunal gives documents to the Secretary 174
379C...................... When a person other than the Secretary is taken to have received a document from the Tribunal 175
379D..................... When the Secretary is taken to have received a document from the Tribunal 177
379EA................... Giving documents by Tribunal—combined applications 177
379F...................... Giving documents etc. to the Tribunal............................ 178
379G..................... Authorised recipient........................................................ 178
Part 7—Review of Part 7‑reviewable decisions 180
Division 1—Interpretation 180
408........................ Simplified outline of this Part......................................... 180
409........................ Scope of this Part............................................................ 181
410........................ Interpretation................................................................... 181
Division 2—Part 7‑reviewable decisions 182
411........................ Definition of Part 7‑reviewable decision........................ 182
412........................ Application for review of Part 7‑reviewable decisions... 183
414........................ Tribunal to review Part 7‑reviewable decisions.............. 184
415........................ Tribunal powers on review of Part 7‑reviewable decisions 184
416........................ Multiple review applications—consideration of information 185
417........................ Minister may substitute more favourable decision.......... 186
418........................ Tribunal to notify Secretary of application for review of Part 7‑reviewable decisions 187
419........................ Certain decisions on review to be made within prescribed period etc. 187
Division 3—Part 7‑reviewable decisions: Tribunal powers 189
420........................ Tribunal’s way of operating............................................ 189
420B...................... Guidance decisions......................................................... 189
Division 4—Part 7‑reviewable decisions: conduct of review 190
422B...................... Exhaustive statement of natural justice hearing rule........ 190
423........................ Documents to be given to the Tribunal........................... 190
423A..................... How Tribunal is to deal with new claims or evidence..... 190
424........................ Tribunal may seek information....................................... 191
424AA.................. Information and invitation given orally by Tribunal while applicant appearing 191
424A..................... Information and invitation given in writing by Tribunal. 192
424B...................... Requirements for written invitation etc........................... 193
424C...................... Failure to give information, comments or response in response to written invitation 194
425........................ Tribunal must invite applicant to appear.......................... 195
425A..................... Notice of invitation to appear.......................................... 195
426........................ Applicant may request Tribunal to call witnesses........... 195
426A..................... Failure of applicant to appear before Tribunal................. 196
426B...................... Failure to appear—Tribunal’s decisions, written statements and notifying the applicant 198
427........................ Powers of the Tribunal etc.............................................. 200
428........................ Tribunal’s power to take evidence.................................. 201
429........................ Review to be in private................................................... 201
429A..................... Oral evidence by telephone etc........................................ 202
Division 5—Part 7‑reviewable decisions: Tribunal decisions 203
430........................ Tribunal’s decision and written statement....................... 203
430A..................... Notifying parties of Tribunal’s decision (decision not given orally) 204
430D..................... Tribunal’s decision given orally...................................... 205
431........................ Identifying information not to be published.................... 207
Division 6—Part 7‑reviewable decisions: offences 208
432........................ Failure to comply with summons.................................... 208
433........................ Refusal to be sworn or to answer questions................... 208
Division 7—Part 7‑reviewable decisions: miscellaneous 210
437........................ Restrictions on disclosure of certain information etc....... 210
438........................ Tribunal’s discretion in relation to disclosure of certain information etc. 210
440........................ Tribunal may restrict publication or disclosure of certain matters 211
Division 7A—Review of Part 7‑reviewable decisions: giving and receiving documents 213
441AA.................. Giving documents by Tribunal where no requirement to do so by section 441A or 441B method 213
441A..................... Methods by which Tribunal gives documents to a person other than the Secretary 214
441B...................... Methods by which Tribunal gives documents to the Secretary 216
441C...................... When a person other than the Secretary is taken to have received a document from the Tribunal 217
441D..................... When the Secretary is taken to have received a document from the Tribunal 219
441EA................... Giving documents by Tribunal—combined applications 219
441F...................... Giving documents etc. to the Tribunal............................ 220
441G..................... Authorised recipient........................................................ 220
Part 7AA—Fast track review process in relation to certain protection visa decisions 222
Division 1—Introduction 222
473BA................... Simplified outline of this Part......................................... 222
473BB................... Definitions...................................................................... 223
473BC................... Minister may determine that certain decisions are to be reviewed under this Part 224
473BD................... Minister may issue conclusive certificate in relation to certain decisions 225
Division 2—Referral of fast track reviewable decisions to Immigration Assessment Authority 226
473CA................... Referral of fast track reviewable decisions...................... 226
473CB................... Material to be provided to Immigration Assessment Authority 226
473CC................... Review of decision......................................................... 227
Division 3—Conduct of review 228
Subdivision A—Natural justice requirements 228
473DA.................. Exhaustive statement of natural justice hearing rule........ 228
Subdivision B—Review on the papers 228
473DB................... Immigration Assessment Authority to review decisions on the papers 228
Subdivision C—Additional information 229
473DC................... Getting new information................................................. 229
473DD.................. Considering new information in exceptional circumstances 229
473DE................... Certain new information must be given to referred applicant 230
473DF................... Invitation to give new information or comments in writing or at interview 231
Division 4—Decisions of Immigration Assessment Authority 232
473EA................... Immigration Assessment Authority’s decision and written statement 232
473EB................... Notification of Immigration Assessment Authority’s decision 233
473EC................... Certain decisions of the Immigration Assessment Authority to be published 233
Division 5—Exercise of powers and functions by Immigration Assessment Authority 235
473FA................... How Immigration Assessment Authority is to exercise its functions 235
473FB................... Practice directions........................................................... 235
473FC................... Guidance decisions......................................................... 236
Division 6—Disclosure of information 237
473GA.................. Restrictions on disclosure of certain information etc....... 237
473GB................... Immigration Assessment Authority’s discretion in relation to disclosure of certain information etc. 237
473GC................... Disclosure of confidential information............................ 238
473GD.................. Immigration Assessment Authority may restrict publication or disclosure of certain matters 240
Division 7—Giving and receiving review documents etc. 242
473HA.................. Giving documents by Immigration Assessment Authority where no requirement to do so by section 473HB or 473HC method............................................................... 242
473HB................... Methods by which Immigration Assessment Authority gives documents to a person other than the Secretary........................................................................................ 243
473HC................... Methods by which Immigration Assessment Authority gives documents to the Secretary 245
473HD.................. When a person other than the Secretary is taken to have received a document from the Immigration Assessment Authority.................................................... 246
473HE................... When the Secretary is taken to have received a document from the Immigration Assessment Authority 248
473HF................... Giving documents etc. to the Immigration Assessment Authority 249
473HG.................. Authorised recipient........................................................ 249
Division 8—The Immigration Assessment Authority 251
473JA.................... The Immigration Assessment Authority......................... 251
473JB.................... Administrative arrangements.......................................... 251
473JC.................... Appointment of Senior Reviewer................................... 252
473JD.................... Acting Senior Reviewer.................................................. 252
473JE.................... Staff................................................................................ 252
473JF.................... Delegation....................................................................... 252
Part 8—Judicial review 253
Division 1—Privative clause 253
474........................ Decisions under Act are final.......................................... 253
Division 2—Jurisdiction and procedure of courts 256
474A..................... Definition of AAT Act migration decision....................... 256
475........................ This Division not to limit section 474............................. 257
476........................ Jurisdiction of the Federal Circuit Court......................... 257
476A..................... Limited jurisdiction of the Federal Court........................ 258
476B...................... Remittal by the High Court............................................. 260
477........................ Time limits on applications to the Federal Circuit Court. 260
477A..................... Time limits on applications to the Federal Court............. 261
478........................ Persons who may make application................................ 262
479........................ Parties to review............................................................. 263
480........................ Intervention by Attorney‑General................................... 263
481........................ Operation etc. of decision............................................... 263
482........................ Changing person holding, or performing the duties of, an office 264
484........................ Exclusive jurisdiction of High Court, Federal Court and Federal Circuit Court 264
Part 8A—Restrictions on court proceedings 265
486A..................... Time limit on applications to the High Court for judicial review 265
486AA.................. Intervention by Attorney‑General................................... 266
486AB................... Operation etc. of decision............................................... 266
486B...................... Multiple parties in migration litigation............................ 266
486C...................... Persons who may commence or continue proceedings in the Federal Circuit Court or the Federal Court........................................................................................ 268
486D..................... Disclosing other judicial review proceedings.................. 269
Part 8B—Costs orders where proceedings have no reasonable prospect of success 271
486E...................... Obligation where there is no reasonable prospect of success 271
486F...................... Cost orders..................................................................... 271
486G..................... Person must be given reasonable opportunity to argue against costs order 272
486H..................... Limited waiver of legal professional privilege................ 273
486I....................... Lawyer’s certification..................................................... 273
486J....................... Part does not limit other powers to order costs against third parties 274
486K...................... Definitions...................................................................... 274
Part 8C—Reports on persons in detention for more than 2 years 275
486L...................... What is the detention reporting start time for a person?. 275
486M..................... What is a detention reporting time for a person?............ 275
486N..................... Secretary’s obligation to report to Commonwealth Ombudsman 275
486O..................... Commonwealth Ombudsman to give Minister assessment of detention arrangements 276
486P...................... Minister to table statement from Commonwealth Ombudsman 277
486Q..................... Application of Ombudsman Act 1976............................ 277
Part 8D—Civil penalties 278
Division 1—Obtaining a civil penalty order 278
486R...................... Civil penalty orders......................................................... 278
486S...................... Additional rules relating to the sponsorship civil penalty provisions 279
486T...................... Civil enforcement of penalty........................................... 280
486U..................... Conduct contravening more than one civil penalty provision 280
486V..................... Multiple contraventions.................................................. 281
486W..................... Proceedings may be heard together................................. 281
486X..................... Civil evidence and procedure rules for civil penalty orders 281
486Y..................... Requirement for persons to assist in applications for civil penalty orders 281
Division 2—Civil proceedings and criminal proceedings 283
486Z...................... Civil proceedings after criminal proceedings.................. 283
486ZA................... Criminal proceedings during civil proceedings............... 283
486ZB................... Criminal proceedings after civil proceedings.................. 283
486ZC................... Evidence given in civil proceedings not admissible in criminal proceedings 284
Division 3—Miscellaneous 285
486ZD................... Ancillary contravention of civil penalty provisions......... 285
486ZE.................... Mistake of fact................................................................ 285
486ZF.................... State of mind................................................................... 286
486ZG................... Civil double jeopardy...................................................... 286
Part 8E—Investigation powers relating to certain offences and provisions 287
Division 1—Preliminary 287
487A..................... Definitions...................................................................... 287
Division 2—Requiring persons to give information or produce documents 290
487B...................... Secretary or Australian Border Force Commissioner may require a person to give information or produce a document........................................................................ 290
487C...................... Self‑incrimination........................................................... 291
Division 3—Search warrants 292
Subdivision A—Search powers 292
487D..................... Authorised officer may enter premises by consent or under a search warrant 292
487E...................... Search powers of authorised officers.............................. 292
487F...................... Powers relating to electronic equipment.......................... 293
487G..................... Seizing evidence of the contravention of related provisions etc. 294
487H..................... Persons assisting authorised officers.............................. 295
487J....................... Use of force in executing a search warrant..................... 296
Subdivision B—Powers of authorised officers to ask questions and seek production of documents 296
487K...................... Authorised officer may ask questions and seek production of documents 296
Subdivision C—Obligations and incidental powers of authorised officers 297
487L...................... Consent........................................................................... 297
487M..................... Announcement before entry under search warrant.......... 297
487N..................... Authorised officer to be in possession of search warrant 298
487P...................... Details of search warrant etc. to be given to occupier..... 298
487Q..................... Completing execution of search warrant after temporary cessation 299
487R...................... Completing execution of search warrant stopped by court order 300
487S...................... Expert assistance to operate electronic equipment........... 301
487T...................... Compensation for damage to electronic equipment......... 302
Subdivision D—Occupier’s rights and responsibilities 303
487U..................... Occupier entitled to observe execution of search warrant 303
487V..................... Occupier to provide authorised officer with facilities and assistance 303
Subdivision E—General provisions relating to seizure 304
487W..................... Copies of seized things to be provided........................... 304
487X..................... Receipts for seized things............................................... 305
487Y..................... Return of seized things................................................... 305
487Z...................... Issuing officer may permit a seized thing to be retained.. 306
487ZA................... Disposal of seized things................................................ 307
487ZB................... Compensation for acquisition of property....................... 307
Subdivision F—Issue of search warrants 308
487ZC................... Issue of search warrants................................................. 308
487ZD................... Search warrants by telephone, fax etc............................. 309
487ZE.................... Authority of search warrant............................................ 311
487ZF.................... Offence relating to search warrants by telephone, fax etc. 311
Subdivision G—Identity cards 312
487ZG................... Identity cards.................................................................. 312
Subdivision H—Powers of issuing officers 313
487ZH................... Powers of issuing officers.............................................. 313
Part 9—Miscellaneous 314
Division 1—Bogus documents 314
487ZI..................... Prohibition on, and forfeiture of, bogus documents........ 314
487ZJ.................... Seizure of bogus documents........................................... 314
487ZK................... Document condemned as forfeited.................................. 315
487ZL.................... Dealing with a document after it is condemned as forfeited 316
Division 2—Other 317
487........................ Liability for identification tests........................................ 317
488........................ Tampering with movements records............................... 317
488A..................... Giving information to other relevant agencies................. 319
488AA.................. Things seized under Crimes Act search warrant and information about such things 319
488B...................... Authorisation to disclose information to an officer......... 320
489........................ Notified data bases.......................................................... 321
490........................ Identification card to be deemed to continue to be in a form approved by the Minister 322
492........................ Commencement of prosecutions..................................... 322
493........................ Conduct of directors, employees and agents................... 322
494........................ Jurisdiction of courts...................................................... 324
494AA.................. Bar on certain legal proceedings relating to unauthorised maritime arrivals 325
494AB................... Bar on certain legal proceedings relating to transitory persons 326
494A..................... Giving documents by Minister where no requirement to do so by section 494B method 327
494B...................... Methods by which Minister gives documents to a person 328
494C...................... When a person is taken to have received a document from the Minister 330
494D..................... Authorised recipient........................................................ 332
495........................ Minister may approve forms........................................... 333
495A..................... Minister may arrange for use of computer programs to make decisions etc. 333
495B...................... Minister may substitute more favourable decisions for certain computer‑based decisions 334
496........................ Delegation....................................................................... 335
497........................ Delegate not required to perform certain administrative tasks 335
498........................ Exercise of powers under Act......................................... 336
499........................ Minister may give directions........................................... 336
500........................ Review of decision......................................................... 337
500A..................... Refusal or cancellation of temporary safe haven visas.... 343
501........................ Refusal or cancellation of visa on character grounds...... 347
501A..................... Refusal or cancellation of visa—setting aside and substitution of non‑adverse decision under subsection 501(1) or (2)................................................. 353
501B...................... Refusal or cancellation of visa—setting aside and substitution of adverse decision under subsection 501(1) or (2)................................................................................... 354
501BA................... Cancellation of visa—setting aside and substitution of non‑adverse decision under section 501CA 355
501C...................... Refusal or cancellation of visa—revocation of decision under subsection 501(3) or 501A(3) 356
501CA................... Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)................................................................. 358
501D..................... Refusal or cancellation of visa—method of satisfying Minister that person passes the character test 360
501E...................... Refusal or cancellation of visa—prohibition on applying for other visas 360
501F...................... Refusal or cancellation of visa—refusal of other visa applications and cancellation of other visas 361
501G..................... Refusal or cancellation of visa—notification of decision 362
501H..................... Refusal or cancellation of visa—miscellaneous provisions 364
501HA.................. Application of sections 501 to 501H to transitional (permanent) visas and transitional (temporary) visas........................................................................................ 364
501J....................... Refusal or cancellation of protection visa—Minister may substitute more favourable decision 364
501K...................... Identity of applicants for protection visas not to be published by the Administrative Appeals Tribunal 366
501L...................... Disclosure of information to the Minister....................... 366
502........................ Minister may decide in the national interest that certain persons are to be excluded persons 369
503........................ Exclusion of certain persons from Australia................... 369
503A..................... Protection of information supplied by law enforcement agencies or intelligence agencies 370
503B...................... Protection of confidential information disclosed to Federal Court or Federal Circuit Court—permanent non‑disclosure orders..................................................... 374
503C...................... Protection of confidential information disclosed to Federal Court or Federal Circuit Court—interim non‑disclosure orders..................................................... 379
503D..................... Details of gazetted agency to be treated as protected information 382
503E...................... Validation of decisions................................................... 382
504........................ Regulations..................................................................... 383
505........................ Regulations about visa criteria........................................ 387
506........................ Regulations about passenger cards................................. 387
506A..................... Regulations may provide for infringement notices.......... 388
506B...................... Tax file numbers............................................................. 388
507........................ Marital or relationship status........................................... 390
The Schedule—Acts relating to immigration and deportation repealed 391
Endnotes 392
Endnote 1—About the endnotes 392
Endnote 2—Abbreviation key 394
Endnote 3—Legislation history 395
Endnote 4—Amendment history 430
Endnote 5—Miscellaneous 514
Part 2—Arrival, presence and departure of persons
Division 14—Recovery 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 14A—Monitoring compliance with student visa conditions
Subdivision A—Preliminary
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 B—Notices 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 C—Searching 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 15—General
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 3—Migration agents and immigration assistance
Division 1—Preliminary
275 Interpretation
In this Part, unless the contrary intention appears:
Australian legal practitioner means a lawyer who holds a practising certificate (whether restricted or unrestricted) granted under a law of a State or Territory.
Note: For the meaning of lawyer, see subsection 5(1).
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.
client: see section 306C.
eligible: see section 278A.
eligible period: see section 278A.
immigration assistance: see section 276.
inactive migration agent: see section 306B.
legal practice means the provision of legal services regulated by a law of a State or Territory.
Migration Agents Registration Authority means the body mentioned in section 315.
Note: If a power or function is expressed to be given to the Migration Agents Registration Authority, it may only be exercised by the Minister, or by a delegate of the Minister under section 320 (see subsection 315(2)).
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 Division 3.
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.
related by employment: see section 278.
restricted: a practising certificate held by an Australian legal practitioner is restricted if:
(a) it is subject to a condition requiring the practitioner to undertake supervised legal practice for a specified period; and
(b) such a condition was not imposed as a disciplinary measure by an authority responsible for disciplining Australian legal practitioners in a State or Territory.
Note: A practising certificate subject to a supervision condition of the kind mentioned in paragraph (a) is, however, taken to be unrestricted if the condition was imposed as a disciplinary measure as mentioned in paragraph (b) (see the definition of unrestricted in this section).
restricted legal practitioner means an Australian legal practitioner whose practising certificate is restricted (within the meaning of this Part).
review authority means:
(a) the Tribunal in reviewing a Part 5‑reviewable decision; or
(b) the Tribunal in reviewing a Part 7‑reviewable decision; or
(c) the Immigration Assessment Authority.
unrestricted: a practising certificate held by an Australian legal practitioner is unrestricted if it is not restricted (within the meaning of this Part).
unrestricted legal practitioner means an Australian legal practitioner whose practising certificate is unrestricted (within the meaning of this Part).
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).
(2B) 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 representation to the Minister to exercise the Minister’s power:
(i) under subsection 501C(4) to revoke a decision to refuse to grant, or to cancel, a visa (whether or not the decision relates to the other person); or
(ii) under subsection 501CA(4) to revoke a decision to cancel a visa (whether or not the decision relates to the other person); or
(b) advising the other person about making a representation mentioned in paragraph (a).
Note: Sections 501C and 501CA provide for the revocation of decisions to refuse or cancel visas on character grounds.
(3) Despite subsections (1), (2), (2A) and (2B), 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.
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.
278A Eligibility for restricted legal practitioners
Eligibility—general
(1) A person who is a restricted legal practitioner is eligible, subject to this section.
(2) The person remains eligible until the earliest of the following times:
(a) the end of the eligible period, or of a longer period as extended under this section;
(b) when the person becomes an unrestricted legal practitioner.
Note 1: A person may be eligible whether or not the person is a registered migration agent at the time of becoming a restricted legal practitioner.
Note 2: While a restricted legal practitioner is eligible, the practitioner may become, or continue to be, a registered migration agent (see sections 289B and 302A). However, to be registered as a migration agent, an eligible restricted legal practitioner must also satisfy the requirements of section 289A, including completing a prescribed course and passing a prescribed exam.
(3) The eligible period is the period of 2 years after the person first held a restricted practising certificate.
Note: However, the eligible period for a person who was a restricted legal practitioner immediately before Division 8 commences (which is also when this section commences) is 2 years after that commencement: see section 333C.
Extension of eligible period
(4) An eligible person may apply to the Migration Agents Registration Authority for an extension of the eligible period for a period of up to 2 years:
(a) in a form approved in writing by the Authority, containing such information relevant to the application as is required by the form; and
(b) if the application is made 3 months or more before the end of the eligible period.
Note: An eligible person may apply for an extension under this subsection whether or not the person is a registered migration agent at the time of the extension application.
(5) A person may make no more than one application for extension under subsection (4).
(6) On an application under subsection (4), the Authority must, by written notice given to the applicant no later than 28 days before the end of the eligible period:
(a) extend the eligible period by a stated period of no more than 2 years; or
(b) refuse to extend the eligible period.
(7) The Authority may extend the eligible period by a particular period only if the Authority considers it reasonable to do so in the circumstances, including (but not limited to) any circumstances determined under subsection (9).
(8) The notice of the decision must include any details determined under subsection (9) in relation to the decision.
(9) The Minister may, by legislative instrument, make a determination for the purposes of subsection (7) or (8).
Review by Administrative Appeals Tribunal
(10) Applications may be made to the Administrative Appeals Tribunal for review of a decision by the Authority:
(a) under paragraph (6)(a), to extend the eligible period by a particular stated period; or
(b) under paragraph (6)(b), to refuse to extend the eligible period.
Note: Section 27A of the Administrative Appeals Tribunal Act 1975 requires that people whose interests are affected by reviewable decisions of the Authority be given notice of their rights to seek review of the decisions.
279 Part VIIC of the Crimes Act 1914 to apply to this Part
Despite paragraph 85ZZH(d) of the Crimes Act 1914, Part VIIC of that Act applies to this Part.
Division 2—Restrictions 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 an Australian legal practitioner from giving immigration assistance in connection with legal practice.
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) an Australian legal practitioner from asking for or receiving a fee or other reward for giving immigration assistance in connection with legal practice; or
(b) a person from asking for or receiving a fee or other reward for the giving of immigration assistance by an Australian legal practitioner in connection with legal practice.
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) Subject to subsection (2A), 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) Subject to subsection (2A), 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.
(2A) This section does not prohibit:
(a) an Australian legal practitioner from asking for or receiving a fee or other reward for making immigration representations in connection with legal practice; or
(b) a person from asking for or receiving a fee or other reward for the making of immigration representations by an Australian legal practitioner in connection with legal practice.
(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; or
(g) on behalf of a person who has made (or is proposing to make) a representation to the Minister to exercise a power under subsection 501C(4) to revoke a decision to refuse to grant, or to cancel, a visa (whether or not the decision relates to that person); or
(h) on behalf of a person who has made (or is proposing to make) a representation to the Minister to exercise a power under subsection 501CA(4) to revoke a decision to cancel a visa (whether or not the decision relates to that person).
(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 an Australian legal practitioner from advertising that the practitioner gives immigration assistance in connection with legal practice.
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 an Australian legal practitioner gives immigration assistance in connection with legal practice.
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 3—Registration of migration agents
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 the individual has been registered at some time within the period, immediately before making the application, that is prescribed for the purposes of this subsection.
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 Requirement to provide further information etc.
Scope
(1) This section applies in relation to an applicant who, on the day the registration application is taken to have been made, is not a registered migration agent.
Notice to provide further information etc.
(2) The Migration Agents Registration Authority may, by written notice given to the applicant, require the applicant to provide information in relation to the application, that is stated in the notice, by doing either of the following:
(a) providing to the Authority, within a period prescribed for the purposes of this paragraph (or that period as extended under subsection (5)) and stated in the notice:
(i) a statutory declaration; and
(ii) any other specified documents;
(b) appearing before the Authority, at a time and place stated in the notice (or at another time or place fixed under subsection (5)), and providing such information, with any specified documents, at such an appearance.
Refusal of application if applicant does not comply with notice
(3) The Authority may consider refusing the application if the applicant fails to comply with a requirement in the notice under subsection (2).
Note: If the Authority is considering refusing a registration application, it must invite the applicant to make a further submission in support of the application (see subsection 309(1)).
(4) An applicant must not be registered if:
(a) the applicant has failed to comply with a requirement of a notice under subsection (2):
(i) within the period to which paragraph (2)(a) applies; or
(ii) at the time to which paragraph (2)(b) applies; and
(b) the Authority has invited the applicant to make a further submission under subsection 309(1) in relation to the information required by the notice under subsection (2); and
(c) any of the following applies:
(i) the applicant fails to make such a further submission within a reasonable time after the invitation is given;
(ii) if the applicant is given an opportunity to appear before the Authority under paragraph 310(3)(b)—the applicant fails to appear before the Authority;
(iii) the Authority is not satisfied that the applicant has provided the information required by the notice under subsection (2) of this section after consideration of such a further submission, and (if the applicant is given an opportunity to appear before the Authority under paragraph 310(3)(b)) any information given by the applicant at such an appearance.
Other matters
(5) The Authority may, by written notice given to the applicant:
(a) upon a request of the applicant made within the period to which paragraph (2)(a) applies, extend the period; or
(b) upon a request of the applicant made before the time to which paragraph (2)(b) applies, fix a new time or place for the applicant to appear before the Authority.
(6) A notice under subsection (2) must include a statement explaining the consequences under this section of failing to comply with the requirements of the notice.
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.
289A Applicant must not be registered if academic and vocational requirements are not satisfied
(1) This section applies to an applicant:
(a) who has never been registered; or
(b) whose registration application is made after the end of a period, prescribed for the purposes of this paragraph, immediately after the end of the applicant’s most recent period of registration.
(2) The applicant must not be registered unless the Migration Agents Registration Authority is satisfied that the applicant has:
(a) completed a course prescribed for the purposes of this paragraph; and
(b) passed an examination, prescribed for the purposes of this paragraph, within a prescribed period before the date of the registration application.
289B Applications by Australian legal practitioners
(1) An applicant who is an unrestricted legal practitioner must not be registered.
(2) An applicant who is a restricted legal practitioner must not be registered unless the applicant is eligible.
Note 1: For when a person is eligible, see sections 278A and 333C.
Note 2: A registered migration agent must notify the Migration Agents Registration Authority within 28 days after becoming a restricted legal practitioner or an unrestricted legal practitioner (see section 312).
Note 3: The Authority must cancel the registration of an agent who is an unrestricted legal practitioner, or who is a restricted legal practitioner who is not eligible (see section 302A).
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 must not be registered if continuing professional development requirements are not satisfied
(1) This section applies in relation to an applicant who has been registered at some time within the period, immediately before making the registration application, that is prescribed for the purposes of this subsection.
(2) The applicant must not be registered if the Migration Agents Registration Authority is satisfied that the applicant has not met, within the period prescribed for the purposes of this subsection, the prescribed requirements 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 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) 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 any other provision of this Part (including subsection (2) of this section), the registration of a registered migration agent ends 12 months after the day of registration.
(2) If the registration is suspended for a period, the period of the registration is extended by a period equal to the 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.
302A Cancellation of registration—Australian legal practitioners
(1) The Migration Agents Registration Authority must cancel the registration of a registered migration agent, by removing the agent’s name from the Register, if the Authority is satisfied:
(a) that the agent is an unrestricted legal practitioner; or
(b) that the agent is a restricted legal practitioner who is not eligible.
Note 1: For when a person is eligible, see sections 278A and 333C.
Note 2: A registered migration agent must notify the Authority within 28 days after becoming a restricted legal practitioner or an unrestricted legal practitioner (see section 312).
Note 3: An unrestricted legal practitioner, or a restricted legal practitioner other than an eligible restricted legal practitioner, cannot be registered as a migration agent (see section 289B).
(2) The Authority may cancel the registration of a registered migration agent under subsection (1) because of the status of the agent as an Australian legal practitioner only on the basis of a document authorised by a body authorised to grant practising certificates to Australian legal practitioners in the relevant State or Territory.
(3) The Authority must give a registered migration agent written notice of a decision to cancel the agent’s registration under subsection (1).
(4) The notice must set out the reason for the decision.
(5) 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.
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: 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
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.
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 3A—Documents 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: For when an agent becomes inactive, 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
(ba) if a person ceases to be a registered migration agent because the Migration Agents Registration Authority cancels the person’s registration under section 302A, or because the person’s registration ends under section 333B:
(i) the person becomes an inactive migration agent at the time of the cessation of the registration; 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
Note 1: The Authority must cancel the registration of an agent who is an unrestricted legal practitioner, or that of an agent who is a restricted legal practitioner, but is not eligible (see section 302A).
Note 2: Section 333B provides that the registration of an unrestricted legal practitioner as a migration agent ends when Division 8 commences (which is also when this paragraph commences).
(c) if the Migration Agents Registration Authority cancels a person’s registration under section 303:
(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:
(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 Definition of client
(1) A client of a registered migration agent is a person to whom the agent has given, or has agreed to give (whether or not in writing), immigration assistance.
(2) In addition:
(a) if a registered migration agent becomes an inactive migration agent, a client of the registered migration agent (while the agent was registered) remains a client of the inactive migration agent; and
(b) a person remains a client of a registered migration agent, or an inactive migration agent, even if the agent is deceased.
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 4—Investigations 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 4A—Disciplining former registered migration agents
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).
Division 5—Obligations 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 the agent paid the non‑commercial application charge in relation to the agent’s current period of registration—the agent begins to give immigration assistance otherwise than on a non‑commercial basis during that period;
(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 following terms used in paragraph (1)(ea) have the same meaning as in the Migration Agents Registration Application Charge Act 1997:
(a) begins (in relation to immigration assistance given otherwise than on a non‑commercial basis);
(b) non‑commercial application charge;
(c) non‑commercial basis (in relation to the basis on which immigration assistance is given).
(4) A registered migration agent must notify the Migration Agents Registration Authority in writing within 28 days after the agent becomes:
(a) a restricted legal practitioner; or
(b) an unrestricted legal practitioner.
Penalty: 100 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.
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.
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 6—Migration Agents Registration Authority
315 Migration Agents Registration Authority—nature, powers and functions
(1) The Migration Agents Registration Authority is the body established within the Department to administer this Part.
(2) A power or function expressed under this Part to be given to the Migration Agents Registration Authority may only be exercised or performed by the Minister, or by a delegate of the Minister under section 320.
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
(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
(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.
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 Referral of conduct of certain migration agents to legal disciplinary authorities
Referral generally
(1) The Migration Agents Registration Authority may refer the conduct of a registered migration agent, or a former registered migration agent, who is an Australian legal practitioner to an authority responsible for disciplining Australian legal practitioners in a State or Territory if:
(a) the legal practitioner was granted a practising certificate under the law of that State or Territory; and
(b) the conduct occurred while the legal practitioner was a registered migration agent, whether or not the conduct occurred in connection with legal practice.
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.
320 Minister may delegate powers and functions
(1) The Minister may delegate any of the powers or functions given to the Migration Agents Registration Authority under this Part to an APS employee in the Department.
Note: See section 315 (Migration Agents Registration Authority—nature, powers and functions).
(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.
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).
Division 6A—Registration 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.
Division 7—Other 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.
(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 Migration Institute of Australia Limited (ACN 003 409 390), or an officer or employee of that 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.
Note: The Institute was appointed as the Migration Agents Registration Authority by instrument dated 21 March 1998, under section 315 as then in force. That instrument was revoked on 30 June 2009.
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).
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.
Division 8—Transitional arrangements for Australian legal practitioners
333 Definitions
In this Division:
amending Act means the Migration Amendment (Regulation of Migration Agents) Act 2020.
Division 8 commencement day means the day this Division commences.
Note: This Division was added by Schedule 1 to the Migration Amendment (Regulation of Migration Agents) Act 2020.
333A Restrictions on giving immigration assistance and making immigration representations
(1) Despite the amendments of Division 2 made by Schedule 1 to the amending Act, that Division, as in force immediately before the Division 8 commencement day, continues to apply in relation to any conduct of a person occurring before that day.
(2) Subsection (1) also applies in relation to any conduct of a person occurring on or after the Division 8 commencement day if the conduct is a part or continuation of, or is connected to, conduct of the person occurring before that day.
333B Registered migration agents who were unrestricted legal practitioners immediately before the Division 8 commencement day
Scope
(1) This section applies in relation to a person who, immediately before the Division 8 commencement day, was both:
(a) a registered migration agent (even if, at that time, the person’s registration was under suspension, or had been taken to continue under subsection 300(4)); and
(b) an unrestricted legal practitioner.
End of registration
(2) The person’s registration as a migration agent ends at the start of the Division 8 commencement day, by force of this section.
333C Persons who were restricted legal practitioners immediately before the Division 8 commencement day
Scope
(1) This section applies in relation to a person who was a restricted legal practitioner immediately before the Division 8 commencement day (whether or not the person was a registered migration agent at that time).
Eligibility under section 278A
(2) The person’s eligible period for the purposes of section 278A is the period of 2 years after the Division 8 commencement day, despite subsection 278A(3).
Note: Subsection 278A(3) provides that generally the eligible period is the period of 2 years after the person first held a restricted practising certificate.
333D Registration applications made before the Division 8 commencement day
Scope
(1) This section applies in relation to a person if, immediately before the Division 8 commencement day:
(a) the person had made a registration application (whether or not the person had previously been registered as a migration agent); and
(b) the Migration Agents Registration Authority had not made a decision in relation to the application.
Application of amendments to registration applications
(2) The amendments of Division 3 made by Schedule 1 to the amending Act apply in relation to the registration application as if it had been made on or after the Division 8 commencement day.
Note: On and after the Division 8 commencement day, some Australian legal practitioners cannot be registered as migration agents (see section 289B).
(3) If the person was an unrestricted legal practitioner immediately before the Division 8 commencement day, section 300 (automatic continuation of registration) does not apply on and after that day in relation to the registration application.
Note: If the registration had been taken to continue under subsection 300(4) before the Division 8 commencement day, the registration would end at the start of that day (see section 333B).
(4) Despite section 291 (applicant must not be registered if registration refused in past year), if the person’s registration application is refused because of section 289B (inserted by Schedule 1 to the amending Act), the refusal of the application does not prevent the person from being registered as a migration agent in accordance with a later registration application made at any time on or after the Division 8 commencement day.
333E Events required to be notified under s 312(4)
Subsection 312(4) (added by Schedule 1 to the amending Act) applies to require a registered migration agent to notify the Migration Agents Registration Authority that the agent has become a restricted or unrestricted legal practitioner if the agent becomes such a practitioner on or after the Division 8 commencement day.
Part 4—Offences relating to decisions under Act
334 Offences in relation to false or misleading statements regarding the making of decisions
(1) A person commits an offence if:
(a) the person makes a statement; and
(b) the statement is about:
(i) the person’s ability or power; or
(ii) another person’s ability or power;
to induce or influence the making of decisions, or of a particular decision, under this Act; and
(c) the statement is false or misleading.
(2) A person commits an offence if:
(a) the person makes a statement; and
(b) the statement is about the effect of:
(i) the person’s actions; or
(ii) another person’s actions;
on the making of a decision under this Act; and
(c) the statement is false or misleading.
Penalty: Imprisonment for 2 years.
335 Offence of undertaking, for reward, to cause decisions to be made etc.
A person must not enter an arrangement under which he or she undertakes, in return for a payment or other reward, that a decision under this Act to a particular effect will be made.
Penalty: Imprisonment for 2 years.
336 Court may order reparation for loss suffered
(1) Where:
(a) a person is convicted by a court of an offence against this Part; and
(b) because of that offence, another person has suffered loss;
the court may, in addition to any penalty imposed on the offender, order the offender to make to the other person such reparation (whether by payment of money or otherwise) as the court thinks fit.
(2) Where:
(a) a court makes an order for the making of reparation by payment of an amount of money; and
(b) the clerk, or other appropriate officer, of the court signs a certificate specifying:
(i) the amount ordered to be paid; and
(ii) the person by whom the amount is to be paid; and
(iii) the person to whom the amount is to be paid; and
(c) the certificate is filed in a court having civil jurisdiction to the extent of the amount to be paid;
the certificate is enforceable in all respects as a final judgment of the court in which the certificate is filed.
(3) The court may not, under subsection (1), order reparation in respect of an amount paid by a person if that amount has been recovered by the person under section 313.
(4) If an amount paid by a person could be recovered by the person under section 313, the following provisions apply:
(a) if, under subsection (1), a court orders the person to whom the amount was paid to make reparation to the first person, the court must state in the order whether the reparation ordered includes reparation for the amount paid;
(b) if a court states in an order under subsection (1) that the reparation ordered is or includes reparation for the amount paid, the amount is not recoverable under section 313.
Part 4A—Obligations relating to identifying information
Division 1—Preliminary
336A Definitions
In this Part:
data base means a discrete body of information stored by electronic means, containing:
(a) indexes of persons who have provided personal identifiers in accordance with a requirement under this Act; and
(b) their identifying information.
destroy, in relation to identifying information, has the meaning given by subsection 336K(4).
disclose, in relation to identifying information that is a personal identifier referred to in paragraph (a) of the definition of identifying information in this section, includes provide unauthorised access to the personal identifier.
Note: Section 336D deals with authorised access to identifying information.
identifying information means the following:
(a) any personal identifier obtained by the Department for one or more of the purposes referred to in subsection 5A(3);
(b) any meaningful identifier derived from any such personal identifier;
(c) any record of a result of analysing any such personal identifier or any meaningful identifier derived from any such personal identifier;
(d) any other information, derived from any such personal identifier, from any meaningful identifier derived from any such personal identifier or from any record of a kind referred to in paragraph (c), that could be used to discover a particular person’s identity or to get information about a particular person.
permitted disclosure has the meaning given by subsections 336E(2) and (3).
unauthorised impairment has the meaning given by section 336J.
unauthorised modification has the meaning given by section 336J.
336B Application
Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to all offences against this Part.
Division 2—Accessing identifying information
336C Accessing identifying information
(1) A person commits an offence if:
(a) the person accesses identifying information; and
(b) the person is not authorised under section 336D to access the identifying information for the purpose for which the person accessed it.
Penalty: Imprisonment for 2 years, or 120 penalty units, or both.
(1A) This section does not apply if the person believes on reasonable grounds that the access is necessary to prevent or lessen a serious and imminent threat to the life or health of the person or of any other person.
Note: A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code).
(2) This section does not apply if the access is through a disclosure that is a permitted disclosure.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
336D Authorising access to identifying information
(1) The Secretary or Australian Border Force Commissioner may, in writing, authorise a specified person, or any person included in a specified class of persons, to access identifying information of the kind specified in the authorisation.
(2) The Secretary or Australian Border Force Commissioner must specify in an authorisation under this section, as the purpose or purposes for which access is authorised, one or more of the following purposes:
(a) one or more of the purposes set out in subsection 5A(3);
(b) disclosing identifying information in accordance with this Part;
(c) administering or managing the storage of identifying information;
(d) making identifying information available to the person to whom it relates;
(e) modifying identifying information to enable it to be matched with other identifying information;
(f) modifying identifying information in order to correct errors or ensure compliance with appropriate standards;
(g) the purposes of:
(i) this Act or an instrument made under this Act; or
(ii) the Australian Citizenship Act 2007 or an instrument made under that Act; or
(iii) the Customs Act 1901 or an instrument made under that Act; or
(iv) any other law of the Commonwealth prescribed by the regulations;
(h) complying with laws of the Commonwealth or the States or Territories.
(3) However, the Secretary or Australian Border Force Commissioner must not specify as a purpose for which access is authorised a purpose that will include or involve the purpose of:
(a) investigating an offence against a law of the Commonwealth or a State or Territory; or
(b) prosecuting a person for such an offence;
if the identifying information in question relates to a personal identifier of a prescribed type.
Division 3—Disclosing identifying information
336E Disclosing identifying information
(1) A person commits an offence if:
(a) the person’s conduct causes disclosure of identifying information; and
(b) the disclosure is not a permitted disclosure.
Penalty: Imprisonment for 2 years, or 120 penalty units, or both.
(1A) This section does not apply if the person believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the person or of any other person.
Note: A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code).
(2) A permitted disclosure is a disclosure that:
(a) is for the purpose of data‑matching in order to:
(i) identify, or authenticate the identity of, a person; or
(ii) facilitate the processing of persons entering or departing from Australia; or
(iii) identify non‑citizens who have a criminal history or who are of character concern; or
(iiia) identify persons who may be a security concern to Australia or a foreign country; or
(iv) combat document and identity fraud in immigration matters; or
(v) ascertain whether an applicant for a protection visa had sufficient opportunity to avail himself or herself of protection before arriving in Australia; or
(vi) inform the governments of foreign countries of the identity of non‑citizens who are, or are to be, removed, taken or deported from Australia; or
(b) is for the purpose of administering or managing the storage of identifying information; or
(ba) is for the purpose of:
(i) this Act or an instrument made under this Act; or
(ii) the Australian Citizenship Act 2007 or an instrument made under that Act; or
(iii) the Customs Act 1901 or an instrument made under that Act; or
(iv) any other law of the Commonwealth prescribed by the regulations; or
(c) is authorised under section 336F and is for the purpose, or one or more of the purposes, for which the disclosure is authorised; or
(d) is for the purpose of making the identifying information in question available to the person to whom it relates; or
(da) is to an agency of the Commonwealth or of a State or Territory in order to verify that a person is an Australian citizen or holds a visa of a particular class; or
(e) takes place under an arrangement entered into with an agency of the Commonwealth, or with a State or Territory or an agency of a State or Territory, for the exchange of identifying information; or
(ea) is reasonably necessary for the enforcement of the criminal law of the Commonwealth or of a State or Territory; or
(eb) is required by or under a law of the Commonwealth or of a State or Territory; or
(ec) is for the purpose of identifying non‑citizens who have a criminal history or who are of character concern; or
(ed) is for the purpose of identifying persons who may be a security concern to Australia or a foreign country; or
(f) is for the purpose of a proceeding, before a court, the Tribunal or another tribunal, or the Immigration Assessment Authority, relating to the person to whom the identifying information in question relates; or
(g) is for the purpose of an investigation by the Information Commissioner or the Ombudsman relating to action taken by the Department; or
(ga) is for the purpose of facilitating or expediting the exercise of powers, or performance of functions, of the Migration Agents Registration Authority; or
(gb) is for the purposes of the extradition of persons to or from Australia, including the making of, or the consideration of whether to make, a request for extradition; or
(gc) is for the purposes of:
(i) the provision, or proposed provision, of international assistance in criminal matters by the Attorney‑General, or an officer of his or her Department, to a foreign country; or
(ii) the obtaining, or proposed obtaining, of international assistance in criminal matters by the Attorney‑General, or an officer of his or her Department, from a foreign country; or
(h) is made to a prescribed body or agency for the purpose of the body or agency inquiring into the operation of provisions of this Act relating to:
(i) carrying out an identification test; or
(ii) requiring the provision of a personal identifier; or
(ha) is a disclosure of an audio or a video recording for the purposes of:
(i) this Act or the regulations or the Australian Citizenship Act 2007 or the regulations made under that Act; and
(ii) transcribing or translating the recording, or conducting language analysis or accent analysis of the recording; or
(i) takes place with the written consent of the person to whom the identifying information in question relates; or
(j) is authorised by section 336FA; or
(k) is authorised by section 336FC.
(3) However, a disclosure is not a permitted disclosure if:
(a) it is a disclosure of identifying information relating to a personal identifier of a prescribed type; and
(b) it is for the purpose of:
(i) investigating an offence against a law of the Commonwealth or a State or Territory; or
(ii) prosecuting a person for such an offence.
336F Authorising disclosure of identifying information to foreign countries etc.
(1) The Secretary or Australian Border Force Commissioner may, in writing, authorise a specified officer, or any officer included in a specified class of officers, to disclose identifying information of the kind specified in the authorisation to one or more of the following:
(a) one or more specified foreign countries;
(b) one or more specified bodies each of which is:
(i) a police force or police service of a foreign country; or
(ii) a law enforcement body of a foreign country (including a war crimes tribunal); or
(iii) a border control body of a foreign country;
(c) one or more specified international organisations, or specified organisations of foreign countries, that are responsible for the registration of people as part of refugee or humanitarian programs;
(d) one or more prescribed bodies of a foreign country, of the Commonwealth or of a State or Territory;
(e) one or more prescribed international organisations.
(2) The Secretary or Australian Border Force Commissioner must specify in the authorisation, as the purpose or purposes for which disclosure is authorised, one or more of the purposes set out in subsection 5A(3).
(3) A disclosure is taken not to be authorised under this section if:
(a) the person to whom the identifying information relates is:
(i) an applicant for a protection visa; or
(ii) an unauthorised maritime arrival who makes a claim for protection as a refugee; or
(iii) an unauthorised maritime arrival who makes a claim for protection on the basis that the person will suffer significant harm; and
(b) the disclosure is to a foreign country in respect of which the application or claim is made, or a body of such a country.
(4) A disclosure is taken not to be authorised under this section if:
(a) the person to whom the identifying information relates is:
(i) an applicant for a protection visa; or
(ii) an unauthorised maritime arrival who makes a claim for protection as a refugee; or
(iii) an unauthorised maritime arrival who makes a claim for protection on the basis that the person will suffer significant harm; and
(b) the officer making the disclosure is not reasonably satisfied that the country or body to which the disclosure is made will not disclose the identifying information to a foreign country in respect of which the application or claim is made, or a body of such a country.
(5) However, if:
(a) the person to whom the identifying information relates has requested or agreed to return to the foreign country in respect of which the application or claim is made; or
(b) the person is an applicant for a protection visa, and the application has been refused and finally determined; or
(c) the person is an unauthorised maritime arrival:
(i) who makes a claim for protection as a refugee; and
(ii) who, following assessment of his or her claim, is found not to be a person in respect of whom Australia has protection obligations; or
(ca) the person is an unauthorised maritime arrival:
(i) who makes a claim for protection on the basis that the person will suffer significant harm; and
(ii) who, following assessment of his or her claim, is found not to be a person for whom there is a real risk of suffering significant harm; or
(cb) the person is an unauthorised maritime arrival:
(i) who makes a claim for protection on the basis that the person will suffer significant harm; and
(ii) who, following assessment of his or her claim, is found to be a person in respect of whom there are serious reasons for considering that he or she has committed a crime against peace, a war crime or a crime against humanity (as defined by international instruments prescribed by the regulations) or a serious non‑political crime before entering Australia, or that he or she has been guilty of acts contrary to the purposes and principles of the United Nations; or
(cc) the person is an unauthorised maritime arrival:
(i) who makes a claim for protection on the basis that the person will suffer significant harm; and
(ii) who, following assessment of his or her claim, is found to be a person in respect of whom there are reasonable grounds for considering that he or she is a danger to Australia’s security or is a person who, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community;
then:
(d) subsection (3) does not apply to a disclosure to that country or to a body of that country; and
(e) subsection (4) does not apply to a disclosure to a body or country that may disclose the identifying information to that foreign country or to a body of that country.
Note: See subsection 5(9) for when an application is finally determined.
336FA Disclosure of certain personal identifiers to selected individuals
(1) For the purposes of paragraph 336E(2)(j), this section authorises the disclosure, by an officer, of identifying information that relates to a person (the subject) if:
(a) the information disclosed is a personal identifier within the meaning of paragraph (b), (c), (d) or (f) of the definition of personal identifier in subsection 5A(1); and
(b) the disclosure is made to an individual; and
(c) the disclosure is for the purpose of obtaining the individual’s help to do one or more of the following in connection with the administration of this Act:
(i) identify, authenticate the identity of, or locate, the subject;
(ii) refer the officer to another person who might be able to help identify, authenticate the identity of, or locate, the subject; and
(d) the officer has reasonable grounds to believe that the individual might be able to provide the help that is the purpose of the officer’s disclosure; and
(e) the officer is satisfied that it is reasonably necessary to make the disclosure to the individual in order to obtain that help; and
(f) the information is only disclosed to the extent necessary in order to obtain that help.
Note: The personal identifiers covered by this section are measurements of a person’s height and weight, photographs or other images of a person’s face and shoulders, audio or video recordings of a person (other than video recordings under section 261AJ) and signatures.
(2) Nothing in subsection (1) prevents an officer from disclosing the personal identifier to more than one individual at the same time, as long as the requirements of subsection (1) are met in relation to each one of those individuals.
336FB Disclosure of other relevant information to selected individuals
(1) An officer may disclose, to an individual, personal information about a person (the subject) if:
(a) the officer is disclosing, to the individual, a personal identifier of the subject and the disclosure is authorised by section 336FA; and
(b) the personal information is disclosed together with the personal identifier; and
(c) paragraphs 336FA(1)(b), (c), (d), (e) and (f) are met in relation to the personal information as well as the personal identifier.
(2) This section does not apply to personal information that is identifying information.
(3) Nothing in subsection (1) prevents an officer from disclosing the personal information to more than one individual at the same time, as long as the requirements of paragraphs 336FA(1)(b), (c), (d), (e) and (f) are met in relation to each one of those individuals.
336FC Disclosure of certain personal identifiers to the general public
(1) For the purposes of paragraph 336E(2)(k), this section authorises the disclosure of identifying information that relates to a person (the subject) who is not a minor, if:
(a) the information disclosed is a personal identifier within the meaning of paragraph (b), (c), (d) or (f) of the definition of personal identifier in subsection 5A(1); and
(b) the disclosure is for the purpose of obtaining the public’s help to identify, authenticate the identity of, or locate, the subject, in connection with the administration of this Act; and
(c) the Secretary or Australian Border Force Commissioner has authorised, in writing, disclosure of the personal identifier.
Note: The personal identifiers covered by this section are measurements of a person’s height and weight, photographs or other images of a person’s face and shoulders, audio or video recordings of a person (other than video recordings under section 261AJ) and signatures.
(2) The Secretary or Australian Border Force Commissioner must not authorise disclosure of the personal identifier unless:
(a) the Secretary or Australian Border Force Commissioner is satisfied that other reasonable steps have been taken to identify, authenticate the identity of, or locate, the subject; and
(b) either:
(i) the Secretary or Australian Border Force Commissioner is satisfied that the subject has been informed of the proposed disclosure (including the personal identifier that is to be disclosed and the manner in which the disclosure is to be made) and the Secretary or Australian Border Force Commissioner has either considered the subject’s views in relation to the proposed disclosure or been satisfied that the subject has no views in relation to it; or
(ii) the Secretary or Australian Border Force Commissioner is satisfied that the subject cannot be found; and
(c) the Secretary or Australian Border Force Commissioner has considered the sensitivity of the personal identifier that is to be disclosed; and
(d) the Secretary or Australian Border Force Co