Migration Act 1958

The Migration Act 1958 is an Act of the Parliament of Australia[2] that governs immigration to Australia. It set up Australia’s universal visa system (or entry permits). Its long title is "An Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons."[1]

Migration Act 1958
Parliament of Australia
CitationMigration Act 1958 (No. 62 of 1958)[2]
Royal assent8 October 1958[2]
Introduced byAlick Downer
Status: Current legislation

The 1958 Act replaced the Immigration Restriction Act 1901, which had formed the basis of the White Australia policy,[3] abolishing the infamous "dictation test", as well as removing many of the other discriminatory provisions in the 1901 Act. The 1958 Act has been amended a number of times.

Deportation decisions, provided for in section 18 the Act, are at the absolute discretion of the responsible Minister or his delegate.[4] Deportation requires a specific deportation order (section 206) and applies to Australian permanent residents only. Removal is an automatic process applying to persons held in immigration detention and does not require any specific order to be made. (Section 198) It covers those persons who do not have a valid visa to be in Australia, whether their valid visa has expired or was cancelled.

Legislative history

The original bill was introduced to the House of Representatives on 1 May 1958 by Alick Downer, the Minister for Immigration in the Menzies Government.[5]

In 1966, the Holt Government amended the Act through the Migration Act 1966. The amendments were relatively minor, dealing with decimalisation and identity documents for crew members of foreign vessels.[6] Several sources have incorrectly identified the Migration Act 1966 as the vehicle through which the Holt Government dismantled the White Australia policy.[7] In fact, the government's actions in that area required no modification of the existing legislation, and were accomplished solely through ministerial decree.[8]

The Migration Legislation Amendment Act 1989 created a regime of administrative detention of unlawful boat arrivals. Such detention was discretionary.

The Migration Reform Act 1992,[9] which came into operation on 1 September 1994, adopted a mandatory detention policy obliging the government to detain all persons entering or being in the country without a valid visa, while their claim to remain in Australia is processed and security and health checks undertaken. Also at the same time the law was changed to permit indefinite detention, from the previous limit of 273 days. Mandatory detention has continued to be part of a campaign by successive Australian governments to stop people without a valid visa (typically asylum seekers) entering the country by boat. The policy has been varied since 1992 by the subsequent Howard, Rudd, Gillard, Abbott and Turnbull Governments.[10] The policy is regarded as controversial and has been criticised by a number of organisations. The High Court of Australia in Al-Kateb v Godwin (2004) confirmed, by majority, the constitutionality of indefinite mandatory detention of aliens.[11]

2018–2019: "Medevac bill"
Further information: Medevac bill

The Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018, dubbed the Medevac bill, introduced amendments to the Migration Act (and two other Acts), in order to give greater weight to medical opinion in allowing the medical evacuation of asylum seekers to Australia from Nauru (previously held in the Nauru Regional Processing Centre) and Manus Island (previously held in the Manus Regional Processing Centre). After discussion the amended bill passed in the House by 75 votes to 74 and passed in the Senate by 36 votes to 34,[12][13][14] as the Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019.

However, the 2018 ruling was overturned in December 2019, after 37 votes to 35 supported the government's move to repeal the law.[15][16]

2014: Character test

In December 2014, after Peter Dutton assumed the position of Minister for Immigration and Border Protection,[17] the Migration Act was amended to impose a character test on visa applicants seeking to enter Australia and foreign non-citizens in Australia.[18] These amendments included the introduction of a new mandatory cancellation provision under section 501(3A). Between the 2013–2014 and 2016–2017 financial years, the number of visa cancellations on character grounds increased by 1,500%. According to statistics released by the Department of Home Affairs, the top ten nationalities that featured in visa cancellations on character grounds in 2017 were New Zealand, the United Kingdom, Vietnam, Sudan, Fiji, Iraq, Tonga, Iran, China, and India.[19] Mandatory detention rules also apply to persons whose visa has been cancelled by the Minister, for example on character grounds, allowing such persons to be detained in immigration detention and deported, some after living in Australia for a long period.[20][21]

2020: Aboriginal Australians cannot be aliens

On 11 February 2020 the High Court of Australia, in a judgment affecting two court cases (Love v Commonwealth of Australia; Thoms v Commonwealth of Australia: [2020] HCA 3), first used the tripartite test in Mabo v Queensland (No 2) (1992) to determine Aboriginality of the two plaintiffs. The court then determined that if a person is thus deemed to be an Aboriginal Australian, they cannot be regarded as an alien in Australia, even if they hold foreign citizenship.[22] The two men concerned, Daniel Love and Brendan Thomas, could not thus be deported as aliens under the provisions of the Migration Act 1958, after both had earlier been convicted of criminal offences and served time in prison until 2018.[23][24]

The following day, Christian Porter, Attorney-General of Australia, said the decision created "an entirely new category of people in terms of what the government can and can’t do” a non-citizen non-alien, or "belonger". Porter said that the government would be looking to deport the small group of Aboriginal non-citizens who have committed serious offences in another way.[25]

Human Rights Commission review

A 1985 report by the Australian Human Rights Commission found that "two groups whose human rights are most at risk in the administration of the Act are disabled persons and persons who have become Prohibited Non-Citizens".[4] The Commission recommended that withholding of an entry permit only be on health (not disability) grounds.[4] It said the Act was largely a machinery measure, with an emphasis on processes relating to entry to, and enforced departure from, Australia, which did not contain a statement of principles but works by conferring extensive discretions on the Minister and officers of the Department. The Commission considered the criteria on which the discretions should be exercised should be stated in the legislation.[4]

See also

References
  1. "MIGRATION ACT 1958 – LONG TITLE". AustLII. Retrieved 19 September 2014.
  2. "Migration Act 1958 – Act No. 62 of 1958". ComLaw. Retrieved 19 September 2014.
  3. "The Establishment of the Immigration Restriction Act". Australian Broadcasting Corporation: Australia's Centenary of Federation. Archived from the original on 3 January 2006. Retrieved 13 July 2005.
  4. "Australian Human Rights Commission – Human Rights and the Migration Act 1958" (PDF). Australian Human Rights Commission. Government of Australia. April 1985. Retrieved 13 October 2018.
  5. "Migration Bill 1958". Hansard. Parliament of Australia. 1 May 1958.
  6. "Migration Act 1966". AustLII. Retrieved 20 September 2014.
  7. E.g. in "Australia's Prime Ministers – Harold Holt". National Archives of Australia. Retrieved 20 September 2014.
  8. Tom Frame (2005), The Life and Death of Harold Holt, p. 160.
  9. Which inserted section 189 of the Migration Act 1958.
  10. (20 March 2013) Janet Phillips & Harriet Spinks. Immigration detention in Australia. Department of Immigration and Citizenship. Commonwealth of Australia. Retrieved 26 July 2013.
  11. Al-Kateb v Godwin (2004) 219 CLR 562
  12. Murphy, Katharine; Karp, Paul (13 February 2019). "Scott Morrison suffers historic defeat as Labor and crossbench pass medevac bill". The Guardian.
  13. "'Shorten can't be trusted on borders': Morrison's fury after losing asylum medivac vote". SBS News. 13 February 2019.
  14. The Parliament of the Commonwealth of Australia. House of Representatives (13 February 2019). "Home Affairs Legislation Amendment(Miscellaneous Measures) Bill 2019. No. , 2019A: Bill for an Act to amend the law relating to migration,custom sand passenger movement charge, and for related purposes (as passed by both houses)" (PDF). Cite journal requires |journal= (help)
  15. Martin, Sarah (4 December 2019). "Medevac repeal bill passes after Jacqui Lambie makes 'secret deal' with Coalition". the Guardian. Retrieved 11 February 2020.
  16. "Migration Amendment (Repairing Medical Transfers) Bill 2019". Parliament of Australia. 14 December 2010. Retrieved 11 February 2020.
  17. "New Abbott ministry sworn in by Governor-General Sir Peter Cosgrove". Sydney Morning Herald. 23 December 2014.
  18. Migration Act 1958 (Cth) s 501 Refusal or cancellation of visa on character grounds.
  19. "Key visa cancellation statistics". Department of Home Affairs, Australian Government. Archived from the original on 20 July 2018. Retrieved 20 July 2018.
  20. Oscar Grenfell (12 November 2015). "Australian government deporting life-long residents over minor offences – World Socialist Web Site". Retrieved 19 April 2016.
  21. Clare Negus. "Syria visit costs man Aussie visa". Retrieved 19 April 2016.
  22. High Court of Australia (11 February 2020). "Love v Commonwealth of Australia; Thoms v Commonwealth of Australia: [2020] HCA 3". Cite journal requires |journal= (help)
  23. Karp, Paul (11 February 2020). "High court rules Aboriginal Australians are not 'aliens' under the constitution and cannot be deported". the Guardian. Retrieved 11 February 2020.
  24. Byrne, Elizabeth; Robertson, Josh (11 February 2020). "Man released from detention as High Court rules Aboriginal people cannot be deported". ABC News. Australian Broadcasting Corporation. Retrieved 11 February 2020.
  25. Karp, Paul; Wahlquist, Calla (12 February 2020). "Coalition seeks to sidestep high court ruling that Aboriginal non-citizens can't be deported". the Guardian. Retrieved 12 February 2020.
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