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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000
The Parliament
of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Migration
Legislation Amendment (Overseas Students) Bill
2000
No. ,
2000
(Immigration and Multicultural
Affairs)
A Bill for an Act to amend the law
relating to migration, and for related purposes
ISBN:
0642 450706
Contents
Migration Act
1958 3
Migration Act
1958 9
Migration Act
1958 33
A Bill for an Act to amend the law relating to migration,
and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Migration Legislation Amendment (Overseas
Students) Act 2000.
(1) This section and section 1 commence on the day on which this Act
receives the Royal Assent.
(2) Subject to subsection (3), the remaining provisions of this Act
commence on a day or days to be fixed by Proclamation.
(3) If a provision of this Act does not commence under subsection (2)
within the period of 6 months beginning on the day on which this Act receives
the Royal Assent, it commences on the first day after the end of that
period.
Subject to section 2, each Act that is specified in a
Schedule to this Act is amended or repealed as set out in the applicable items
in the Schedule concerned, and any other item in a Schedule to this Act has
effect according to its terms.
1 Subparagraph 48(1)(b)(ii)
Omit “or 134 (business visas)”, substitute “, 134
(business visas) or 137J (student visas)”.
2 After Subdivision GA of Division 3 of
Part 2
Insert:
(1) This section applies if a notice is sent to a non-citizen under
section 20 of the Education Services for Overseas Students Act 2000
in relation to a visa held by the non-citizen (even if the non-citizen never
receives the notice).
Note: Under that section, a registered education provider
must send a notice to a non-citizen who breaches a condition of the
non-citizen’s visa relating to attendance or satisfactory academic
performance. The notice must give particulars of the breach and must require the
non-citizen to attend before an officer for the purpose of explaining the
breach.
(2) The non-citizen’s visa is cancelled by force of this section at
the end of the 28th day after the day that the notice specifies as the date of
the notice unless, before the end of that 28th day:
(a) the non-citizen complies with the notice; or
(b) the non-citizen, while attending in person at an office of Immigration
(within the meaning of the regulations) that is either:
(i) in Australia; or
(ii) approved for the purposes of this paragraph by the Minister by notice
in the Gazette;
makes himself or herself available to an officer for the stated purpose
of explaining the breach alleged in the notice.
(1) A non-citizen whose visa has been cancelled under section 137J
may apply in writing to the Minister for revocation of the
cancellation.
(2) A non-citizen who is in the migration zone cannot apply for revocation
at a time when, because of section 82, the visa would no longer have been
in effect anyway had the visa not been cancelled under
section 137J.
(3) In addition to the restriction in subsection (2), a non-citizen
who is in the migration zone and who has been detained under section 189
cannot apply for revocation later than:
(a) 2 working days after the day on which section 194 was complied
with in relation to his or her detention; or
(b) if he or she informs an officer in writing within those 2 days of his
or her intention to so apply—within the next 5 working days after those 2
working days.
(4) A non-citizen who is outside the migration zone cannot apply for
revocation later than 28 days after the day of the cancellation.
(5) In any case, a non-citizen cannot apply for revocation if he or she
has previously made such an application in respect of the same
cancellation.
(1) On an application under section 137K, the Minister may revoke the
cancellation if, and only if, the applicant satisfies the Minister:
(a) that the non-citizen did not in fact breach the relevant visa
condition or conditions; or
(b) that the breach was due to exceptional circumstances beyond the
non-citizen’s control; or
(c) of any other matter prescribed in the regulations.
(2) However, the Minister must not revoke the cancellation on the ground
that the non-citizen was unaware of the notice or of the effect of
section 137J.
(3) A cancellation is revoked under this section by the Minister causing a
record of the revocation to be made.
(1) When the Minister decides whether to revoke a cancellation under
section 137L, he or she must give the non-citizen written notice of the
decision.
(2) Notice of a decision not to revoke a cancellation must:
(a) specify the grounds for the decision; and
(b) state:
(i) that if the non-citizen was in the migration zone when the decision
was made, the decision is reviewable under Part 5; and
(ii) the time in which the application for review may be made;
and
(iii) who may apply for the review; and
(iv) where the application for review may be made.
(3) Failure to notify of a decision whether to revoke a cancellation does
not affect the validity of the decision.
(1) The Minister may, on his or her own initiative, revoke the
cancellation under section 137J of a particular non-citizen’s visa,
if the Minister thinks that it is in the public interest to do so.
(2) The Minister must give the relevant non-citizen written notice of a
decision under subsection (1) to revoke a cancellation.
(3) The power in subsection (1) may only be exercised by the Minister
personally.
(4) The Minister does not have a duty to consider whether to exercise the
power in subsection (1), whether or not the non-citizen or anyone else
requests him or her to do so, or in any other circumstances.
(5) A cancellation is revoked under this section by the Minister causing a
record of the revocation to be made.
(1) If the cancellation of a visa is revoked under section 137L or
137N, the visa is taken never to have been cancelled under
section 137J.
(2) If the revocation is under section 137L and the decision is made
wholly or partly on the ground that paragraph 137L(1)(a) or (b) applies to the
breach that was alleged in the notice mentioned in section 137J, then that
breach cannot be a ground for cancelling the visa under
section 116.
(3) However, a revocation under section 137L or 137N does not
otherwise limit or affect any other power to cancel the visa under this
Act.
(4) In particular, a different or later breach of a condition of the visa
can be a ground for cancelling the visa under section 116.
(5) Despite subsection (1), any detention of the non-citizen that
occurred during any part of the period:
(a) beginning when the visa was cancelled under section 137J;
and
(b) ending at the time of the revocation of the cancellation;
is lawful and the non-citizen is not entitled to make any claim against the
Commonwealth, an officer or any other person because of the detention.
3 After subsection 138(1)
Insert:
(1A) Subsection (1) does not apply to a cancellation under
section 137J.
4 Subsection 140(1)
Before “, a visa held”, insert “or 137J (student
visas)”.
5 Paragraph 140(2)(a)
Before “; and”, insert “or 137J (student
visas)”.
6 Paragraph 140(4)(b)
After “section 131”, insert “, 137L or
137N”.
7 Section 194
Repeal the section, substitute:
As soon as reasonably practicable after an officer detains a person under
section 189, the officer must ensure that the person is made aware
of:
(a) the provisions of sections 195 and 196; and
(b) if a visa held by the person has been cancelled under
section 137J—the provisions of section 137K.
8 Paragraph 198(5)(b)
Omit “section 195 but did not do so”, substitute
“section 195, to apply under section 137K for revocation of the
cancellation of a visa, or both, but did neither”.
9 At the end of
section 198
Add:
(10) For the purposes of subsections (6) to (9), a valid application
under section 137K for revocation of the cancellation of a visa is treated
as though it were a valid application for a substantive visa that can be granted
when the applicant is in the migration zone.
10 Section 275 (definition of
cancellation review applicant)
Repeal the definition, substitute:
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.
11 After subsection 338(3)
Insert:
(3A) A decision under section 137L not to revoke the cancellation of
a non-citizen’s visa is an MRT-reviewable decision if the
non-citizen was in the migration zone when the decision was made.
12 Subparagraph
347(1)(b)(i)
After “(3)”, insert “, (3A)”.
13 Paragraph 347(2)(a)
After “(3)”, insert “, (3A)”.
14 Subsection 347(3)
After “(3)”, insert “, (3A)”.
1 Subsection 5(1)
Insert:
student visa has the meaning given by the
regulations.
2 After Division 14 of
Part 2
Insert:
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.
new ESOS Act means the Education Services for Overseas
Students Act 2000.
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.
old ESOS Act means the Education Services for Overseas
Students (Registration of Providers and Financial Regulation) Act
1991.
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.
(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.
The Criminal Code applies to all offences against this
Division.
(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.
(1) This section applies if the Secretary 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 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 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.
(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.
(1) The Secretary 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; 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.
(2) However, if the Secretary 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.
(1) This section applies if the Secretary 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 may give the individual written notice requiring the
individual to attend before an authorised officer and answer questions about the
matter.
Note: The Secretary 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.
(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.
The regulations may prescribe scales of expenses to be allowed to persons
required to give information or documents under this Subdivision.
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).
(1) A person who refuses or fails to comply with a production or
attendance notice is guilty of an offence.
Maximum penalty: Imprisonment for 6 months.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(2) However, a person is not guilty of 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.
A person who gives false or misleading information in the course of
complying or purporting to comply with a production or attendance notice is
guilty of an offence.
Maximum penalty: Imprisonment for 12 months.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(1) A person who gives or shows an authorised officer 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, is guilty of an
offence.
Maximum penalty: Imprisonment for 12 months.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(2) However, the person is not guilty of 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.
(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.
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).
(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.
(1) If an officer retains a document under section 268BM, then the
Secretary 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 thinks
appropriate.
(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.
(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 269BQ.
(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.
(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.
(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.
(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.
(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.
(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.
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.
(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.
(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.
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.
(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.
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 be guilty of 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.
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 be guilty of an offence if the person
fails to comply with a requirement under this section: see
section 268CL.
Note 2: A person could be guilty of 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.
(1) A person is guilty of an offence if the person refuses or fails to
comply with a requirement under section 268CK (officer on premises under
warrant may ask questions).
Maximum penalty: Imprisonment for 6 months.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(2) However, a person is not guilty of 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.
A person who gives false or misleading information in the course of
complying or purporting to comply with section 268CJ or 268CK (officer may
ask questions) is guilty of an offence.
Maximum penalty: Imprisonment for 12 months.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(1) A person who gives or shows an authorised officer a document that is
false or misleading in a material particular, in the course of complying or
purporting to comply with section 268CJ or 268CK (officer may ask
questions), is guilty of an offence.
Maximum penalty: Imprisonment for 12 months.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(2) However, the person is not guilty of 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.
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.
(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.
(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.
(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.
(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.
(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.
(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.
(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 is guilty of an offence if the person contravenes
subsection (1).
Maximum penalty: 10 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: See section 4AA of the Crimes Act 1914
for the current value of a penalty unit.
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.
(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.
(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.
(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.
(1) For the purposes of this Subdivision, an authorised officer’s
identity card must be in a form approved by the Secretary. It must
contain a recent photograph of the authorised officer.
(2) A person is guilty of 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.
Maximum penalty: 1 penalty unit.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: See section 4AA of the Crimes Act 1914
for the current value of a 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 is not guilty of 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.
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.
(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.
(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.
(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.
(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.
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.
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.
1 Paragraph 41(2)(a)
After “protection visa”, insert “, or a temporary visa of
a specified kind”.
2 Subsection 46(1)
Omit “subsection (2)”, substitute
“subsections (1A) and (2)”.
3 Paragraph 46(1)(d)
Omit “grounds); and”, substitute
“grounds).”.
4 Paragraph 46(1)(e)
Repeal the paragraph.
5 After subsection 46(1)
Insert:
(1A) Subject to subsection (2), an application for a visa is invalid
if:
(a) the applicant is in the migration zone; and
(b) since last entering Australia, the applicant has held a visa subject
to a condition described in paragraph 41(2)(a); and
(c) the Minister has not waived that condition under subsection 41(2A);
and
(d) the application is for a visa of a kind that, under that condition,
the applicant is not or was not entitled to be granted.
6 Subsection 46(2)
Omit “also”.
7 Application
The amendment made by item 1 applies to visas granted after the
commencement of this Schedule.