Division 4 under Part 2 of the Migration Act (1958) is on criminal justice visitors. Division 4, Part 2 consists of multiple Subdivisions.
Subdivision A has the following Sections:
Subdivision B includes:
Section 141: Object of Division on Criminal Justice Visitors
This Section on criminal justice visitors lays out the objective of Division 4 under Part 2. It states that the reason behind enactment of this Division is that if the administration of criminal justice requires the presence of a non-citizen in Australia, then the non-citizen can stay in Australia for the purpose of that administration.
Section 142: Interpretation of Terms Appearing Under Division 4 (Criminal Justice Visitors)
Section 142 provides definitions of certain terms. See below:
Administration of criminal justice includes:
- an investigation to find out whether a party has committed an offence;
- the prosecution of a person for an offence; or
- the punishment by way of imprisonment of a person for the commission of an offence.
In this Division, “Australia” refers to the migration zone. Furthermore, “authorised official” in relation to a State refers to a person who is authorised under Section 144 to be an official for the State.
“Criminal justice certificate” refers to:
View the table below for further definitions.
| Term | Definition |
| criminal justice entry certificate | (a) a certificate given under section 145; or (b) a certificate given under subsection 146(1) and endorsed under subsection 146(2). |
| criminal justice entry visa | meaning given by section 155. |
| criminal justice stay certificate | a certificate given under section 147 or 148. |
| criminal justice stay visa | meaning given by section 155. |
| criminal justice stay warrant | a warrant described in section 151. |
| criminal justice visa | meaning given by section 38 |
| state | includes Territory (an internal Territory, or external Territory) |
Section 143: Delegation by Minister
Subsection (1) of Section 143 states that the Minister, may, in writing, delegate any of their powers under this Division to:
- the Secretary of the Department; or
- an SES (Senior Executive Services) employee or acting SES employee in the Department.
Moreover, subsection (2) states that subject to subsection (3), the Minister may, in writing, delegate his or her power under section 147 to a commissioned police officer (within the meaning of the Australian Federal Police Act 1979).
According to point (3), a delegate under subsection (2) must provide that:
- the power may only be exercised in relation to a person at a port; and
- any certificate that is issued by the member is to remain in force for no longer than 5 days.
Lastly, section 143 states that the Minister may at any time revoke a certificate issued by a person exercising a power delegated under subsection (2) by written notice.
Section 144: Authorised Officials
The Minister may, in writing, appoint as an authorised official for a State for the purposes of this Division:
- the Attorney-General of the State; or
- a person holding an office under a law of the State that is like the office of the Director of Public Prosecutions; or
- the highest ranking member of the police force of the State.
Section 145: Commonwealth Criminal Justice Entry Certificate
(1) The Minister may provide a certificate that the presence of a non-citizen is needed for the administration of criminal justice in Australia. This is in cases where the Minister considers that:
a) the temporary presence of a non-citizen in Australia who is outside Australia is required for the purposes of:
- the Extradition Act 1988 ; or
- the International War Crimes Tribunals Act 1995 ; or
- the International Criminal Court Act 2002 ; or
- the Mutual Assistance in Criminal Matters Act 1987 ; or
- the administration of criminal justice in relation to an offence against a law of the Commonwealth; and
b) the presence of the non-citizen in Australia or the relevant purposes would not hinder the national interest in any way to such an extent that the non-citizen should not be present in Australia; and
c) satisfactory arrangements have been made to make sure that the person or organisation who wants the non-citizen or the relevant purposes or the non-citizen or both will meet the cost of bringing the non-citizen to, keeping the non-citizen in, and removing the non-citizen from Australia.
Additionally, for the purposes of (1c), the cost of keeping the non-citizen in Australia will not include the cost of immigration detention (if applicable).
Section 146: State Criminal Justice Entry Certificate
Similar to Section 145, Section 146 states that if:
- an authorised official of a State considers that the temporary presence in Australia of a non-citizen is required for the purpose of administration of criminal justice in relation to an offence against the law of the State; and
- satisfactory arrangements have been made to make sure that the person or organisation who wants the non-citizen for those purposes or the non-citizen or both will meet the cost of bringing the non-citizen to, keeping the non-citizen in, and removing the non-citizen from, Australia.
Secondly, if:
- a certificate has been given under subsection (1) about a non-citizen; and
- b) the Minister considers that the temporary presence of the non-citizen in Australia in order to advance the administration of criminal justice by the State would not hinder the national interest in any way to such an extent that the non-citizen should not be present in Australia;
the Minister may endorse the certificate with a statement that it is to be a criminal justice certificate for the purposes of this Division.
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