Miscellaneous Provisions About Entry to Australia

The information we provide in this article about miscellaneous provisions about entry to Australia is current as of the date of publication. The DHA regularly updates rules and regulations. Kindly ensure that you check the official updates before making any decisions. Also, speak with an immigration lawyer for the most up-to-date information, as laws and conditions are subject to change.

This article will discuss the miscellaneous provisions about entry to Australia under sections 489 to 494AA of the Migration Act. What’s common in these sections is that they provide for additional requirements for entry to Australia.

Here are the topics that this article will tackle:

1. Notified data bases
2. Required form of identification cards
3. Commencement of prosecutions
4. Conduct of directors, employees, and agents
5. Jurisdiction of courts
6. Bar on certain legal proceedings relating to unauthorised maritime arrivals

Miscellaneous Provisions About Entry to Australia: Data Bases and Identification Cards

Section 489 states that the Minister may declare a database that contains information for purposes of the Act. The information contains data relating to entry to and departure of persons from Australia. 

Section 490 states that the Minister may revoke the approval of an identification card form of members of the crews of vessel. However, if the identification card is in accordance with the form that the vessel’s master signed not later than 3 months after the date of the revocation, it shall be deemed to continue to be an identification card in accordance with a form that the Minister approved.

Commencement of Prosecutions

Section 492 of the Act talks about the commencement of prosecutions for any offence against the Migration Act. A prosecution for an offence against this Act or the regulations may be instituted at any time within 5 years after the commission of that offence.

Note that a prosecution of a person for an offence against sections 234, 236 or 243 that is alleged to have been committed after the commencement of this subsection may be instituted at any time. The offences are the following:

• Section 234: False documents and false or misleading information etc. relating to non-citizens  
• Section 236: Offences relating to visas
• Section 243: Offences relating to application for permanent residence because of marriage or de facto relationship.

For the following offences, the prosecution may be commenced at any time before the commencement of this section and those committed after the commencement of the Migration Legislation Amendment Act (No. 1) 1999:

• Section 232A: Organising bringing groups of non-citizens into Australia
• Section 233A: Other offences relating to groups of non-citizens etc –
  • Presentation or causing to be presented, to an officer or a person exercising powers or performing functions under this Act a document that the person knows is forged or false;
  • Make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that the person knows is false or misleading in a material particular;
  • deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise furnish, or cause to be furnished, for official purposes of the Commonwealth, a document containing a statement or information that the person knows is false or misleading in a material particular.

Miscellaneous Provisions About Entry to Australia: Conduct of Directors, Employees, and Agents

If a person commits an offence against the Migration Act or the regulations or for a civil penalty order, section 493 requires that the state of mind of a body corporate in relation to a particular conduct must be established during the proceedings.

The state of mind includes the following:

1. the knowledge, intention, opinion, belief, or purpose of the person; and
2. the person’s reasons for the intention, opinion, belief, or purpose.

It must sufficiently show that:

1. the conduct was engaged in by a director, employee, or agent of the body corporate within the scope of his or her actual or apparent authority; and
2. that the director, employee, or agent had the state of mind.

Moreover, if the conduct is engaged in on behalf of a body corporation by its director, employee, or agent within the scope of his or her actual or apparent authority:

• the law considers that the body corporate engaged in such conduct
• unless the body corporate establishes the reasonable precautions taken if any and the exercise of due diligence to avoid such conduct. 

Courts’ Jurisdiction

If a person commits an offence against the Migration Act outside a Territory and is found in, or brought into the Territory, the court of such Territory has jurisdiction over the offence as it would have if the offence was committed within the Territory.

Additionally, the trial for an offence under the Act that is not committed within a State may be held by a court of competent jurisdiction at any place where the court may sit. (section 494)

Unauthorised Marine Arrivals: Bar on Certain Legal Proceedings

Section 494AA enumerates certain legal proceedings that the court may not institute:

1. proceedings relating to an unauthorised entry by an unauthorised maritime arrival;
2. proceedings relating to the status of an unauthorised maritime arrival as an unlawful non-citizen during any part of the ineligibility period;
3. proceedings relating to the lawfulness of the detention of an unauthorised maritime arrival during the ineligibility period, being a detention based on the status of the unauthorised maritime arrival as an unlawful non-citizen;
4. proceedings relating to performing or exercising a function, duty or power relating to Regional Processing that concerns unauthorised maritime arrival.

For clarification, the following phrases pertain to its respective definitions:

1. Ineligibility period: period from the time of the unauthorised entry until the time when the person next ceases to be an unlawful non-citizen.
2. Unauthorised entry: entry into Australia that occurs – 
   • at an excised offshore place after the excision time for that place; or
   • at any other place on or after the commencement of section 5AA (Meaning of unauthorised maritime arrival)

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Australia’s law on migration can be complex. Our migration attorneys at JB Solicitors can break down the legal implications of your status or conduct. We can provide legal advice based on your current situation and present efficient solutions to your legal issues.

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