Commonwealth Consolidated Acts
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Interpretation- (1)
- In this Act, unless the contrary intention appears:
- "absorbed person visa" has the meaning given by section 34.
"adjacent area" means an adjacent area in respect of a State, of the Northern Territory, of the Territory of Ashmore and Cartier Islands, of the Territory of Cocos (Keeling) Islands or of the Territory of Christmas Island, as determined in accordance with section 5 of the Sea Installations Act.
"allowed inhabitant of the Protected Zone" means an inhabitant of the Protected Zone, other than an inhabitant to whom a declaration under section 16 (presence declared undesirable) applies.
"applicable pass mark", in relation to a visa of a particular class, means the number of points specified as the pass mark for that class in a notice, under section 96, in force at the time concerned.
"applicable pool mark", in relation to a visa of a particular class, means the number of points specified as the pool mark for that class in a notice under section 96 in force at the time concerned.
"approved form", when used in a provision of this Act, means a form approved by the Minister in writing for the purposes of that provision.
"approved sponsor", in relation to a visa of a kind (however described) to which Division 3A of Part 2 applies, has the meaning given by section 140D.
"area in the vicinity of the Protected Zone" means an area in respect of which a notice is in force under subsection (8).
"assessed score", in relation to an applicant for a visa, means the total number of points given to the applicant in an assessment under section 93.
"Australian passport" means a passport issued under the Passports Act 1938 .
"Australian resources installation" means a resources installation that is deemed to be part of Australia because of the operation of section 8.
"Australian seabed" means so much of the seabed adjacent to Australia (other than the seabed within the Joint Petroleum Development Area) as is:
(a) within the area comprising:
(i) the areas described in Schedule 2 to the Petroleum (Submerged Lands) Act 1967 ; and
(ii) the Coral Sea area; and
(b) part of:
(i) the continental shelf of Australia;
(ii) the seabed beneath the territorial sea of Australia (including the territorial sea adjacent to any island forming part of Australia); or
(iii) the seabed beneath waters of the sea that are on the landward side of the territorial sea of Australia and are not within the limits of a State or Territory.
(a) in relation to a resources installation—waters above the Australian seabed; and
(b) in relation to a sea installation—waters comprising all of the adjacent areas and the coastal area.
- "authorised officer", when used in a provision of this Act, means an officer authorised in writing by the Minister or the Secretary for the purposes of that provision.
- Note: Section 5D can affect the meaning of this term for the purposes of carrying out identification tests.
(a) has been convicted of a crime and sentenced to death or to imprisonment, for at least one year; or
(b) has been convicted of 2 or more crimes and sentenced to imprisonment, for periods that add up to at least one year if:
(i) any period concurrent with part of a longer period is disregarded; and
(ii) any periods not disregarded that are concurrent with each other are treated as one period;
whether or not:
(iii) the crimes were of the same kind; or
(iv) the crimes were committed at the same time; or
(v) the convictions were at the same time; or
(vi) the sentencings were at the same time; or
(vii) the periods were consecutive; or
(c) has been charged with a crime and either:
(i) found guilty of having committed the crime while of unsound mind; or
(ii) acquitted on the ground that the crime was committed while the person was of unsound mind;
(d) has been removed or deported from Australia or removed or deported from another country; or
(e) has been excluded from another country in prescribed circumstances;
where sentenced to imprisonment includes ordered to be confined in a corrective institution.
- "bridging visa" has the meaning given by section 37.
"brought into physical contact" has the same meaning as in the Sea Installations Act.
"bypass immigration clearance" has the meaning given by subsection 172(4).
"certified printout" means a printout certified by an authorised officer to be a printout of information kept in the movement records.
"character concern" has the meaning given by section 5C.
"coastal area" has the same meaning as in the Customs Act 1901 .
"continental shelf" has the same meaning as in the Seas and Submerged Lands Act 1973 .
"Coral Sea area" has the same meaning as in the Petroleum (Submerged Lands) Act 1967 .
"criminal justice visa" has the meaning given by section 38.
"data base" (except in Part 4A) means a discrete body of information stored by means of a computer.
- Note: Section 336A defines this term differently for the purposes of Part 4A.
- "departure prohibition order" means an order under subsection 14S (1) of the Taxation Administration Act 1953 .
"deportation" means deportation from Australia.
"deportation order" means an order for the deportation of a person made under, or continued in force by, this Act.
"deportee" means a person in respect of whom a deportation order is in force.
(a) take into immigration detention; or
(b) keep, or cause to be kept, in immigration detention;
and includes taking such action and using such force as are reasonably necessary to do so.
- "detainee" means a person detained.
"diplomatic or consular representative", in relation to a country other than Australia, means a person who has been appointed to, or is the holder of, a post or position in a diplomatic or consular mission of that country in Australia, not being a person who was ordinarily resident in Australia when he or she was appointed to be a member of the mission.
"enforcement visa" has the meaning given by section 38A.
"enter Australia", in relation to a person, means enter the migration zone.
"entered" includes re-entered.
"environment related activity" has the same meaning as in the Sea Installations Act.
(a) the Territory of Christmas Island;
(b) the Territory of Ashmore and Cartier Islands;
(c) the Territory of Cocos (Keeling) Islands;
(d) any other external Territory that is prescribed by the regulations for the purposes of this paragraph;
(e) any island that forms part of a State or Territory and is prescribed for the purposes of this paragraph;
(f) an Australian sea installation;
(g) an Australian resources installation.
- Note: The effect of this definition is to excise the listed places and installations from the migration zone for the purposes of limiting the ability of offshore entry persons to make valid visa applications.
(a) for the Territory of Christmas Island—2 pm on 8 September 2001 by legal time in the Australian Capital Territory; or
(b) for the Territory of Ashmore and Cartier Islands—2 pm on 8 September 2001 by legal time in the Australian Capital Territory; or
(c) for the Territory of Cocos (Keeling) Islands—12 noon on 17 September 2001 by legal time in the Australian Capital Territory; or
(d) for any other external Territory that is prescribed by the regulations for the purposes of the definition of excised offshore place —the time when the regulations commence; or
(e) for any island that forms part of a State or Territory and is prescribed by the regulations for the purposes of the definition of excised offshore place —the time when the regulations commence; or
(f) for an Australian sea installation—the commencement of the Migration Amendment (Excision from Migration Zone) Act 2001 ; or
(g) for an Australian resources installation—the commencement of the Migration Amendment (Excision from Migration Zone) Act 2001 .
- "ex-citizen visa" has the meaning given by section 35.
"Federal Court" means the Federal Court of Australia.
"fisheries detention offence" means an offence against section 99, 100, 100A, 101, 101A, 101B, 105E or 105F of the Fisheries Management Act 1991 .
"fisheries officer" means an officer as defined in the Fisheries Management Act 1991 .
"foreign boat" has the same meaning as in the Fisheries Management Act 1991 .
"health concern non-citizen" means a non-citizen who is suffering from a prescribed disease or a prescribed physical or mental condition.
"health criterion", in relation to a visa, means a prescribed criterion for the visa that:
(a) relates to the applicant for the visa, or the members of the family unit of that applicant (within the meaning of the regulations); and
(b) deals with:
(i) a prescribed disease; or
(ii) a prescribed kind of disease; or
(iii) a prescribed physical or mental condition; or
(iv) a prescribed kind of physical or mental condition; or
(v) a prescribed kind of examination; or
(vi) a prescribed kind of treatment.
- "holder", in relation to a visa, means, subject to section 77 (visas held during visa period) the person to whom it was granted or a person included in it.
"identification test" means a test carried out in order to obtain a personal identifier.
"identity document", in relation to a member of the crew of a vessel, means:
(a) an identification card, in accordance with a form approved by the Minister, in respect of the member signed by the master of the vessel; or
(b) a document, of a kind approved by the Minister as an identity document for the purposes of this Act, in respect of the member.
(a) being in the company of, and restrained by:
(i) an officer; or
(ii) in relation to a particular detainee—another person directed by the Secretary to accompany and restrain the detainee; or
(b) being held by, or on behalf of, an officer:
(i) in a detention centre established under this Act; or
(ii) in a prison or remand centre of the Commonwealth, a State or a Territory; or
(iii) in a police station or watch house; or
(iv) in relation to a non-citizen who is prevented, under section 249, from leaving a vessel—on that vessel; or
(v) in another place approved by the Minister in writing;
but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b).
- Note: See also section 198A, which provides that being dealt with under that section does not amount to immigration detention .
- "incapable person" means a person who is incapable of understanding the general nature and effect of, and purposes of, a requirement to provide a personal identifier.
"independent person "means a person (other than an officer or an authorised officer) who:
(a) is capable of representing the interests of a non-citizen who is providing, or is to provide, a personal identifier; and
(b) as far as practicable, is acceptable to the non-citizen who is providing, or is to provide, the personal identifier; and
(c) if the non-citizen is a minor—is capable of representing the minor's best interests.
(a) a resources installation; or
(b) a sea installation.
- "Joint Petroleum Development Area" has the same meaning as in the Petroleum (Timor Sea Treaty) Act 2003 .
"lawful non-citizen" has the meaning given by section 13.
"leave Australia", in relation to a person, means, subject to section 80 (leaving without going to other country), leave the migration zone.
"master", in relation to a vessel, means the person in charge or command of the vessel.
(a) in relation to a vessel other than an aircraft—the master of the vessel, or a person whose name is on the articles of the vessel as a member of the crew; or
(b) in relation to an aircraft—the master of the aircraft, or a person employed by the operator of the aircraft and whose name is included in a list of members of the crew of the aircraft furnished by the master as prescribed.
- "Migration Review Tribunal" means the Migration Review Tribunal established by section 394.
"migration zone" means the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes:
(a) land that is part of a State or Territory at mean low water; and
(b) sea within the limits of both a State or a Territory and a port; and
(c) piers, or similar structures, any part of which is connected to such land or to ground under such sea;
but does not include sea within the limits of a State or Territory but not in a port.
- "minor" means a person who is less than 18 years old.
"movement records" means information stored in a notified data base.
"natural resources" means the mineral and other non-living resources of the seabed and its subsoil.
"non-citizen" means a person who is not an Australian citizen.
(a) whose disclosure would, in the Minister's opinion, be contrary to the national interest because it would:
(i) prejudice the security, defence or international relations of Australia; or
(ii) involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet; or
(b) whose disclosure would, in the Minister's opinion, be contrary to the public interest for a reason which could form the basis of a claim by the Crown in right of the Commonwealth in judicial proceedings; or
(c) whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence;
and includes any document containing, or any record of, such information or matter.
(a) an offence against section 6 of the Crimes Act 1914 that relates to an offence against a provision of this Act; and
(b) an ancillary offence (within the meaning of the Criminal Code ) that is, or relates to, an offence against a provision of this Act.
(a) an officer of the Department, other than an officer specified by the Minister in writing for the purposes of this paragraph; or
(b) a person who is an officer for the purposes of the Customs Act 1901 , other than such an officer specified by the Minister in writing for the purposes of this paragraph; or
(c) a person who is a protective service officer for the purposes of the Australian Federal Police Act 1979 , other than such a person specified by the Minister in writing for the purposes of this paragraph; or
(d) a member of the Australian Federal Police or of the police force of a State or an internal Territory; or
(e) a member of the police force of an external Territory; or
(f) a person who is authorised in writing by the Minister to be an officer for the purposes of this Act; or
(g) any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of this Act, including a person who becomes a member of the class after the authorisation is given.
(a) entered Australia at an excised offshore place after the excision time for that offshore place; and
(b) became an unlawful non-citizen because of that entry.
(a) permits a person to travel to Australia; and
(b) was issued before 1 September 1994; and
(c) has not been cancelled or otherwise stopped being in effect.
- "passport" includes a document of identity issued from official sources, whether in or outside Australia, and having the characteristics of a passport, but does not include a document, which may be a document called or purporting to be a passport, that the regulations declare is not to be taken to be a passport.
"permanent visa" has the meaning given by subsection 30(1).
"personal identifier "has the meaning given by section 5A.
(a) a proclaimed port; or
(b) a proclaimed airport.
- "pre-cleared flight" means a flight declared under section 17 to be a pre-cleared flight.
"prescribed" means prescribed by the regulations.
"printout" means a mechanically or electronically made reproduction of part or all of the movement records.
"privative clause decision "has the meaning given by subsection 474(2).
(a) an airport appointed under section 15 of the Customs Act 1901 ; or
(b) an airport appointed by the Minister under subsection (5).
(a) a port appointed under section 15 of the Customs Act 1901 ; or
(b) a port appointed by the Minister under subsection (5).
(a) part of the migration zone; and
(b) in, or in an area in the vicinity of, the Protected Zone.
- "Protected Zone" means the zone established under Article 10 of the Torres Strait Treaty, being the area bounded by the line described in Annex 9 to that treaty.
"questioning detention" means detention under section 192.
"Refugee Review Tribunal" means the Refugee Review Tribunal established by section 457.
"Refugees Convention" means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951.
"Refugees Protocol" means the Protocol relating to the Status of Refugees done at New York on 31 January 1967.
"refused immigration clearance" has the meaning given by subsection 172(3).
"remain in Australia", in relation to a person, means remain in the migration zone.
"remove" means remove from Australia.
"removee" means an unlawful non-citizen removed, or to be removed, under Division 8 of Part 2.
(a) a resources industry fixed structure within the meaning of subsection (10); or
(b) a resources industry mobile unit within the meaning of subsection (11).
- "RRT-reviewable decision" has the meaning given by section 411.
"score", in relation to a visa applicant, means the total number of points given to the applicant under section 93 in the most recent assessment or re-assessment under Subdivision B of Division 3 of Part 2.
"sea installation" has the same meaning as in the Sea Installations Act.
"Sea Installations Act" means the Sea Installations Act 1987 .
"Secretary" means the Secretary to the Department.
"special category visa" has the meaning given by section 32.
"special purpose visa" has the meaning given by section 33.
(a) a bridging visa; or
(b) a criminal justice visa; or
(c) an enforcement visa.
- "temporary visa" has the meaning given by subsection 30(2).
(a) an internal Territory; or
(b) an external Territory to which this Act extends.
- "ticket" includes a travel document in respect of the conveyance of a person from one place to another place.
"Torres Strait Treaty" means the Treaty between Australia and the Independent State of Papua New Guinea that was signed at Sydney on 18 December 1978.
"traditional activities" has the same meaning as in the Torres Strait Treaty.
"traditional inhabitants" has the same meaning as in the Torres Strait Fisheries Act 1984 .
(a) an offshore entry person who was taken to another country under section 198A; or
(b) a person who was taken to a place outside Australia under paragraph 245F(9)(b); or
(c) a person who, while a non-citizen and during the period from 27 August 2001 to 6 October 2001:
(i) was transferred to the ship HMAS Manoora from the ship Aceng or the ship MV Tampa ; and
(ii) was then taken by HMAS Manoora to another country; and
(iii) disembarked in that other country;
but does not include a person who has been assessed to be a refugee for the purposes of the Refugees Convention as amended by the Refugees Protocol.
- "unlawful non-citizen" has the meaning given by section 14.
"vessel" includes an aircraft or an installation.
"visa" has the meaning given by section 29 and includes an old visa .
"visa applicant" means an applicant for a visa and, in relation to a visa, means the applicant for the visa.
"visa application charge" means the charge payable under section 45A.
VISA application charge limit is the amount determined under the Migration (Visa Application) Charge Act 1997.
"visa holder" means the holder of a visa and, in relation to a visa, means the holder of the visa.
(a) beginning when the visa is granted; and
(b) ending:
(i) in the case of a visa other than a bridging visa—when the visa ceases to be in effect; or
(ii) in the case of a bridging visa—when the visa ceases to be in effect otherwise than under subsection 82(3).
- (1A)
- The Minister has power to give authorisations as provided by paragraphs (f) and (g) of the definition of officer in subsection (1) and, if such an authorisation is given:
(a) the Minister is to cause notice of the authorisation to be published in the Gazette ; but
(b) without affecting the obligation of the Minister to cause a notice to be so published:
(i) the authorisation takes effect when it is given; and
(ii) the validity of the authorisation is not affected if such a notice is not published.
- (2)
- For the purposes of this Act, a person has functional English at a particular time if:
(a) the person passes a test that:
(i) is approved in writing by the Minister for the purposes of this subsection; and
(ii) is conducted by a person, or organisation, approved for the purposes of this subsection by the Minister by notice in the Gazette ; or
(b) the person provides the Minister with prescribed evidence of the person's English language proficiency.
- (3)
- Any power that may be exercised by an authorized officer or by an officer under this Act may also be exercised by the Minister.
- (4)
- Where, in any provision of this Act, reference is made to the exercise of a power by an authorized officer or by an officer and that power is a power which, by virtue of subsection (3), may also be exercised by the Minister, that reference shall be construed as including a reference to the exercise of that power by the Minister.
- (4A)
- A reference in the definition of independent person in subsection (1) of this section, in sections 258 to 258G or in Division 13AB of Part 2 to a non-citizen includes a reference to a person whom an officer, in the course of exercising or considering the exercising of his or her powers under section 188, reasonably suspects is a non-citizen.
- (5)
- The Minister may, by notice published in the Gazette :
(a) appoint ports in an external Territory to which this Act extends as proclaimed ports for the purposes of this Act and fix the limits of those ports; and
(b) appoint airports in an external Territory to which this Act extends as proclaimed airports for the purposes of this Act and fix the limits of those airports.
- (6)
- For the purposes of this Act, where a resources installation that has been brought into Australian waters from a place outside the outer limits of Australian waters becomes attached to the Australian seabed:
(a) the installation shall be deemed to have entered Australia at the time when it becomes so attached;
(b) any person on board the installation at the time when it becomes so attached shall be deemed to have travelled to Australia on board that installation, to have entered Australia at that time and to have been brought into Australia at that time.
- (7)
- For the purposes of this Act, where a sea installation that has been brought into Australian waters from a place outside the outer limits of Australian waters is installed in an adjacent area or in a coastal area:
(a) the installation shall be deemed to have entered Australia at the time that it becomes so installed; and
(b) any person on board the installation at the time that it becomes so installed shall be deemed to have travelled to Australia on board that installation, to have entered Australia at that time and to have been brought into Australia at that time.
- (8)
- The Minister may, by notice published in the Gazette , declare an area adjacent to the Protected Zone and to the south of the line described in Annex 5 to the Torres Strait Treaty to be an area in the vicinity of the Protected Zone for the purposes of this Act.
- (9)
- For the purposes of this Act, an application under this Act is finally determined when either:
(a) a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7; or
(b) a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed.
- (10)
- A reference in this Act to a resources industry fixed structure shall be read as a reference to a structure (including a pipeline) that:
(a) is not able to move or be moved as an entity from one place to another; and
(b) is used or is to be used off-shore in, or in any operations or activities associated with, or incidental to, exploring or exploiting natural resources.
- (11)
- A reference in this Act to a resources industry mobile unit shall be read as a reference to:
(a) a vessel that is used or is to be used wholly or principally in:
(i) exploring or exploiting natural resources by drilling the seabed or its subsoil with equipment on or forming part of the vessel or by obtaining substantial quantities of material from the seabed or its subsoil with equipment of that kind; or
(ii) operations or activities associated with, or incidental to, activities of the kind referred to in subparagraph (i); or
(b) a structure (not being a vessel) that:
(i) is able to float or be floated;
(ii) is able to move or be moved as an entity from one place to another; and
(iii) is used or is to be used off-shore wholly or principally in:
(A) exploring or exploiting natural resources by drilling the seabed or its subsoil with equipment on or forming part of the structure or by obtaining substantial quantities of material from the seabed or its subsoil with equipment of that kind; or
(B) operations or activities associated with, or incidental to, activities of the kind referred to in sub-subparagraph (A).
- (12)
- A vessel of a kind referred to in paragraph (11)(a) or a structure of a kind referred to in paragraph (11)(b) shall not be taken not to be a resources industry mobile unit by reason only that the vessel or structure is also used or to be used in, or in any operations or activities associated with, or incidental to, exploring or exploiting resources other than natural resources.
- (13)
- The reference in subparagraph (11)(a)(ii) to a vessel that is used or is to be used wholly or principally in operations or activities associated with, or incidental to, activities of the kind referred to in subparagraph (11)(a)(i) shall be read as not including a reference to a vessel that is used or is to be used wholly or principally in:
(a) transporting persons or goods to or from a resources installation; or
(b) manoeuvring a resources installation, or in operations relating to the attachment of a resources installation to the Australian seabed.
- (14)
- A resources installation shall be taken to be attached to the Australian seabed if:
(a) the installation:
(i) is in physical contact with, or is brought into physical contact with, a part of the Australian seabed; and
(ii) is used or is to be used, at that part of the Australian seabed, wholly or principally in or in any operations or activities associated with, or incidental to, exploring or exploiting natural resources; or
(b) the installation:
(i) is in physical contact with, or is brought into physical contact with, another resources installation that is taken to be attached to the Australian seabed by virtue of the operation of paragraph (a); and
(ii) is used or is to be used, at the place where it is brought into physical contact with the other installation, wholly or principally in or in any operations or activities associated with, or incidental to, exploring or exploiting natural resources.
- (15)
- Subject to subsection (17), for the purposes of this Act, a sea installation shall be taken to be installed in an adjacent area if:
(a) the installation is in, or is brought into, physical contact with a part of the seabed in the adjacent area; or
(b) the installation is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in the adjacent area because of paragraph (a).
- (16)
- For the purposes of this Act, a sea installation shall be taken to be installed in an adjacent area at a particular time if the whole or part of the installation:
(a) is in that adjacent area at that time; and
(b) has been in a particular locality:
(i) that is circular and has a radius of 20 nautical miles; and
(ii) the whole or part of which is in that adjacent area;
for:
(iii) a continuous period, of at least 30 days, that immediately precedes that time; or
(iv) one or more periods, during the 60 days that immediately precede that time, that in sum amount to at least 40 days.
(a) is brought into physical contact with a part of the seabed in an adjacent area; or
(b) is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in an adjacent area;
for less than:
(c) in the case of a ship, or an aircraft, registered under the law of a foreign country—30 days; or
(d) in any other case—5 days;
it shall not be taken to be installed in that adjacent area under subsection (15).
- (18)
- A sea installation shall not be taken to be installed in an adjacent area for the purposes of this Act unless it is to be taken to be so installed under this section.
- (19)
- Subject to subsection (21), for the purposes of this Act, a sea installation shall be taken to be installed in a coastal area if:
(a) the installation is in, or is brought into, physical contact with a part of the seabed in the coastal area; or
(b) the installation is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in the coastal area because of paragraph (a).
- (20)
- For the purposes of this Act, a sea installation (other than an installation installed in an adjacent area) shall be taken to be installed at a particular time in a coastal area if the whole or part of the installation:
(a) is in that coastal area at that time; and
(b) has been in a particular locality:
(i) that is circular and has a radius of 20 nautical miles; and
(ii) the whole or part of which is in that coastal area;
for:
(iii) a continuous period, of at least 30 days, that immediately precedes that time; or
(iv) one or more periods, during the 60 days that immediately precede that time, that in sum amount to at least 40 days.
(a) is brought into physical contact with a part of the seabed in a coastal area; or
(b) is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in a coastal area;
for less than:
(c) in the case of a ship, or an aircraft, registered under the law of a foreign country—30 days; or
(d) in any other case—5 days;
it shall not be taken to be installed in that coastal area under subsection (19).
- (22)
- A sea installation shall not be taken to be installed in a coastal area for the purposes of this Act unless it is to be taken to be so installed under this section.
- (23)
- To avoid doubt, in this Act is taken , when followed by the infinitive form of a verb, has the same force and effect as is deemed when followed by the infinitive form of that verb.
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