Migration Amendment Act 2024

No. 105, 2024

An Act to amend the Migration Act 1958, and for related purposes

Contents

1 Short title 1

2 Commencement 1

3 Schedules 2

Schedule 1—Cessation of certain bridging visas 3

Part 1—Main amendments 3

Migration Act 1958 3

Part 2—Other amendments 6

Migration Act 1958 6

Schedule 2—Civil liability immunity 9

Migration Act 1958 9

Schedule 3—Disclosure etc. of criminal history information 12

Migration Act 1958 12

Schedule 4—Disclosure etc. of information to foreign countries 15

Migration Act 1958 15

Schedule 5—Spending authority for third country reception arrangements 18

Migration Act 1958 18

Schedule 6—Subclass 070 (Bridging (Removal Pending)) visas 20

Migration Act 1958 20

Schedule 7—Other amendments relating to subclass 070 (Bridging (Removal Pending)) visas 23

Migration Act 1958 23

Migration Amendment Act 2024

No. 105, 2024

An Act to amend the Migration Act 1958, and for related purposes

[Assented to 4 December 2024]

The Parliament of Australia enacts:
1 Short title

This Act is the Migration Amendment Act 2024.
2 Commencement 1

Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information Commencement information Commencement information
Column 1 Column 2 Column 3
Provisions Commencement Date/Details
1. The whole of this Act The day after this Act receives the Royal Assent. 5 December 2024

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

 2

Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Schedules

Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Cessation of certain bridging visas

Migration Act 1958

 1 After section 76

Insert:

 76AAA Cessation of certain bridging visas—holder has permission to enter and remain in another country 1

This section applies in relation to a non-citizen if:

 a

the non-citizen holds a Subclass 070 (Bridging (Removal Pending)) visa; and

 b

the non-citizen has permission (however described), granted by a foreign country, to enter and remain in that country; and

 c

the foreign country is a party to a third country reception arrangement (within the meaning of section 198AHB) that is in force; and

 d

none of the following apply:

 i

the non-citizen has made a valid application for a protection visa that has not been finally determined;

 ii

the non-citizen could not be removed to the foreign country because of subsection 197C(3) if the non-citizen were an unlawful non-citizen;

 iii

the non-citizen is a child under 18.

 2

The Minister must give the non-citizen notice that this section applies in relation to the non-citizen.

 3

The notice:

 a

must be given as soon as reasonably practicable after this section starts to apply in relation to the non-citizen; and

 b

may be given orally or in writing.

 4

Despite any other provision of this Act or the regulations, the visa ceases to be in effect immediately after:

 a

if the notice is given by a method specified in section 494B—the non-citizen is taken to have received the notice; or

 b

otherwise—the non-citizen receives the notice.

Note 1: If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.

Note 2: The visa period for the visa ends when it ceases to be in effect under this subsection.

the Minister must give further notice under subsection (2) to the non-citizen.

 5

The rules of natural justice do not apply to the giving of a notice under subsection (2).

 6

For the purposes of paragraph (1)(b), a permission to enter the foreign country may be unconditional or a permission to enter that is subject to the non-citizen doing one or more things required by the foreign country that the non-citizen is capable of doing before entering the country.

 7

If:

 a

(a) notice (the earlier notice) is given to a non-citizen under subsection (2) (including under a previous application of this subsection); and

 b

(b) the non-citizen is subsequently granted another Subclass 070 (Bridging (Removal Pending)) visa (the later visa); and

 c

this section starts to apply in relation to the non-citizen after the later visa is granted;

 8

For the purposes of paragraph (7)(c):

 a

the country in relation to which paragraph (1)(b) is satisfied may be the same as, or different from, the country in relation to which paragraph (1)(b) was satisfied for the earlier notice; but

 b

the permission in relation to which paragraph (1)(b) is satisfied must be granted after the granting of the later visa.

 9

This section does not affect the operation of other provisions of this Act or the regulations that have the effect that a Subclass 070 (Bridging (Removal Pending)) visa ceases to be in effect on the happening of a particular event, upon the holder ceasing to have a particular status or otherwise.

 2 Section 76A (heading)

Repeal the heading, substitute:

 76A Cessation of certain bridging visas, and grant of new visas, for certain non-citizens 3 Application of amendments

Section 76AAA of the Migration Act 1958, as inserted by this Part, applies in relation to a non-citizen whether the Subclass 070 (Bridging (Removal Pending)) visa, or the permission of the foreign country, was granted before, on or after the commencement of this item.

Migration Act 1958

 4 Subsection 5(1)

Insert:

removal pathway non-citizen means:

Note: The effect of paragraph (1)(c) is that only certain non-citizens holding Subclass 050 (Bridging (General)) visas will be removal pathway non-citizens.

 a

an unlawful non-citizen who is required to be removed from Australia under section 198 as soon as reasonably practicable; or

 b

a lawful non-citizen who holds a Subclass 070 (Bridging (Removal Pending)) visa; or

 c

a lawful non-citizen who:

 i

holds a Subclass 050 (Bridging (General)) visa; and

 ii

at the time the visa was granted, satisfied a criterion for the grant relating to the making of, or being subject to, acceptable arrangements to depart Australia; or

 d

a lawful non-citizen who:

 i

holds a visa prescribed by the regulations for the purposes of this subparagraph; and

 ii

at the time the visa was granted, satisfied a criterion for the grant relating to the making of, or being subject to, acceptable arrangements to depart Australia.

 5 Subsections 197C(4), (5), (6) and (7)

Omit “For the purposes of subsection (3), a”, substitute “A”.

 6 Subsection 197D(1)

Repeal the subsection, substitute:

 1

This section applies in relation to a non-citizen if:

 a

the non-citizen is:

 i

an unlawful non-citizen; or

 ii

a removal pathway non-citizen covered by paragraph (b), (c) or (d) of the definition of that expression in subsection 5(1); and

 b

the non-citizen has made a valid application for a protection visa that has been finally determined; and

 c

in the course of considering the application, a protection finding, within the meaning of subsection 197C(4), (5), (6) or (7), was made for the non-citizen with respect to a country (whether or not the protection visa was refused or was granted and has since been cancelled).

 7 Subsection 197D(2)

Omit “an unlawful non-citizen to whom paragraphs 197C(3)(a) and (b) apply in relation to a valid application for a protection visa”, substitute “the non-citizen”.

 8 After subsection 197D(2)

Insert:

 2A

A decision made under subsection (2) is a decision of a kind referred to in subparagraph 197C(3)(c)(ii), whether it is made in relation to:

 a

an unlawful non-citizen; or

 b

a removal pathway non-citizen covered by paragraph (b), (c) or (d) of the definition of that expression in subsection 5(1).

 9 Subsections 197D(3) and (4)

Omit “an unlawful non-citizen”, substitute “a non-citizen”.

 10 Paragraph 338A(1)(e)

Omit “an unlawful non-citizen”, substitute “a non-citizen”.

 11 Application of amendments 1

(1) Paragraphs (b) and (c) of the definition of removal pathway non-citizen in subsection 5(1) of the Migration Act 1958, as inserted by this Part, apply in relation to a non-citizen who holds a visa, whether the visa was granted before, on or after the commencement of this item.

 2

(2) Section 197D of the Migration Act 1958, as amended by this Part, applies in relation to a protection finding, whether the protection finding is made before, on or after the commencement of this item.

 Civil liability immunity

Migration Act 1958

 1 At the end of section 198

Add:

No civil liability for removal

in relation to the acceptance or receipt by a foreign country, or ongoing presence in a foreign country, of a person removed from Australia under this section, including any act or thing done or omitted to be done:

 12

No civil liability is incurred by an officer or the Commonwealth in relation to any act or thing done, or omitted to be done, by the officer in good faith and in the exercise of the officer’s powers, or the performance of the officer’s functions or duties, under this section in relation to a person:

 a

in relation to whom a decision has been made under section 501, 501A, 501B or 501BA; or

 b

in relation to whom a decision has been made to refuse under section 65 to grant a protection visa relying on subsection 5H(2) or 36(1C); or

 c

whose visa has ceased to be in effect under section 76AAA.

 13

No civil liability is incurred by an officer, an officer of the Commonwealth (including the Minister) or the Commonwealth in relation to any act or thing done, or omitted to be done:

 a

by the officer or officer of the Commonwealth in good faith and:

 i

in the exercise of the officer’s or the officer of the Commonwealth’s powers; or

 ii

in the performance of the officer’s or the officer of the Commonwealth’s functions or duties; or

 b

by a foreign country; or

 c

by any person in a foreign country;

 d

under or in relation to a third country reception arrangement (within the meaning of section 198AHB); or

 e

in relation to the third country reception functions (within the meaning of that section) of the country.

 2 After subsection 198AD(11)

Insert:

No civil liability for taking to regional processing country

in relation to the acceptance or receipt by a regional processing country or another foreign country, or ongoing presence in a regional processing country or another foreign country, of an unauthorised maritime arrival taken to a regional processing country under this section (the applicable country), including any act or thing done or omitted to be done:

 11A

No civil liability is incurred by an officer, the Minister or the Commonwealth in relation to any act or thing done, or omitted to be done, by the officer or the Minister in good faith and in the exercise of the officer’s or Minister’s powers, or the performance of the officer’s or Minister’s functions or duties, under this section.

 11B

No civil liability is incurred by an officer, an officer of the Commonwealth (including the Minister) or the Commonwealth in relation to any act or thing done, or omitted to be done:

 a

by the officer or officer of the Commonwealth in good faith and:

 i

in the exercise of the officer’s or the officer of the Commonwealth’s powers; or

 ii

in the performance of the officer’s or the officer of the Commonwealth’s functions or duties; or

 b

(b) by a regional processing country or another foreign country; or

 c

by any person in a regional processing country or another foreign country;

 d

under or in relation to an arrangement (within the meaning of section 198AHA) mentioned in subsection 198AHA(1) that is in relation to the regional processing functions (within the meaning of section 198AHA) of the applicable country; or

 e

in relation to the regional processing functions (within the meaning of section 198AHA) of the applicable country; or

 f

under or in relation to a third country reception arrangement (within the meaning of section 198AHB); or

 g

in relation to the third country reception functions (within the meaning of section 198AHB) of the applicable country.

 3 Application of amendments

Sections 198 and 198AD of the Migration Act 1958, as amended by this Schedule, apply in relation to acts or things done, or omitted to be done, on or after the commencement of this item.

 Disclosure etc. of criminal history information

Migration Act 1958

 1 Subsection 5(1)

Insert:

criminal history information means information about an individual’s criminal history, and includes information about:

 a

any charge against the individual for an offence against a law of the Commonwealth, a State or a Territory, whether or not the individual has been found to have committed the offence; and

 b

any finding that the individual committed such an offence, whether or not the individual has been convicted of the offence; and

 c

any conviction of the individual of such an offence, whether or not the conviction is spent (however described) under:

 i

(i) Crimes Act 1914; orPart VIIC of the

ii

a law of a State or Territory; and

 d

any other result of a proceeding for the prosecution of the individual for such an offence.

 2 After section 501L

Insert:

 501M Collection, use and disclosure of criminal history information

Collection, use and disclosure

Secondary use and disclosure

Existing prohibitions do not apply

No limitation on existing powers

Note: For example, the Minister or an officer of the Department may also collect, use, or disclose to the government of a foreign country, for certain purposes, criminal history information about certain non-citizens (see section 198AAA).

 1

The Minister or an officer of the Department may collect, use, or disclose to a person or body, criminal history information for the purpose of informing, directly or indirectly, the performance of a function or the exercise of a power under this Act or the regulations.

 2

If a person or body receives criminal history information as a result of a disclosure under subsection (1), the person or body may collect, use, or disclose to a person or body, the information for the purpose of providing advice or recommendations, directly or indirectly, to the Minister or an officer of the Department on matters relating to the performance of a function or the exercise of a power under this Act or the regulations.

 3

This section has effect despite:

 a

(a) any other provision of this Act or the regulations, Crimes Act 1914, or any other law of the Commonwealth; orDivision 3 of Part VIIC of the

b

any law of a State or Territory.

 4

This section does not limit any other powers the Minister or an officer of the Department has to collect, use or disclose information under this Act, the regulations or any other law of the Commonwealth.

 3 Application of amendments

Section 501M of the Migration Act 1958, as inserted by this Schedule, applies in relation to a use or disclosure of information that occurs on or after the commencement of this item, whether the information was obtained before, on or after that commencement.

 4 Validation of things done in relation to criminal history information before commencement 1

This item applies if:

 a

a person or body collected, used or disclosed criminal history information before the commencement of this item; and

 b

the collection, use or disclosure would, apart from subitem (2), be wholly or partly invalid or unlawful because of a law of the Commonwealth, a State or a Territory.

 2

(2) The collection, use or disclosure is, and is taken always to have been, as valid and lawful as it would have been if Migration Act 1958, as inserted by this Schedule, had been in force when the collection, use or disclosure occurred.section 501M of the

3

To avoid doubt, if a thing done or purportedly done before the commencement of this item would, apart from subitem (2), be wholly or partly invalid or unlawful, then the thing done or purportedly done is taken for all purposes to be, and to have always been, valid and lawful, despite any effect that may have on the accrued rights of any person.

Note: The things referred to in this subitem include, for example, the making of a decision under the Migration Act 1958 or regulations under that Act.

 4

For the purposes of applying this item in relation to civil or criminal proceedings, this item applies in relation to:

 a

civil and criminal proceedings instituted on or after the commencement of this item; and

 b

civil and criminal proceedings instituted before the commencement of this item, being proceedings that are concluded:

 i

before the commencement of this item; or

 ii

on or after the commencement of this item.

 Disclosure etc. of information to foreign countries

Migration Act 1958

 1 At the end of Subdivision A of Division 8 of Part 2

Add:

 198AAA Collection, use and disclosure of information to foreign countries 1

The Minister or an officer of the Department may collect, use, or disclose to the government of a foreign country, for a purpose mentioned in subsection (2), information (including personal information) about:

 a

a removal pathway non-citizen; or

 b

a former removal pathway non-citizen who does not hold a substantive visa or criminal justice visa.

Note: To avoid doubt, personal information includes criminal history information.

Circumstances in which information must not be disclosed

Certain existing prohibitions do not apply

No limitation on existing powers

Note: For example, the Minister or an officer of the Department may also collect, use, or disclose to a person or body, criminal history information for the purpose of informing the performance of a function or the exercise of a power under this Act or the regulations (see section 501M).

Definitions

government of a foreign country means:

 2

The purposes are as follows:

 a

determining whether there is a real prospect of the removal of the non-citizen from Australia under section 198 becoming practicable in the reasonably foreseeable future;

 b

facilitating the removal of the non-citizen from Australia under that section;

 c

taking action or making payments in relation to:

 i

a third country reception arrangement (within the meaning of section 198AHB); or

 ii

the third country reception functions (within the meaning of that section) of a foreign country;

 d

doing a thing that is incidental or conducive to the taking of an action, or the making of a payment, mentioned in paragraph (c);

 e

purposes directly or indirectly connected with, or incidental to, any of the above.

 3

However, information about a non-citizen must not be disclosed to the government of a foreign country under subsection (1) if:

 a

the non-citizen has made a valid application for a protection visa that has not been finally determined; or

 b

in the case of an unlawful non-citizen—the non-citizen cannot be removed to that country because of subsection 197C(3); or

 c

in the case of a lawful non-citizen—the non-citizen could not be removed to that country because of subsection 197C(3) if the non-citizen were an unlawful non-citizen.

 4

(4) Despite Crimes Act 1914, any other law of the Commonwealth, or any law of a State or Territory, this section has effect in relation to information about any conviction of an individual that is spent (however described) under any of those laws.Division 3 of Part VIIC of the

5

This section does not limit any other powers the Minister or an officer of the Department has to collect, use or disclose information under this Act, the regulations or any other law of the Commonwealth.

 6

In this section:

 a

the government of the foreign country or of part of the foreign country; or

 b

an agency or authority of the government of the foreign country; or

 c

an agency or authority of the government of part of the foreign country; or

 d

a local government body or regional government body of the foreign country.

 2 Application of amendments

Section 198AAA of the Migration Act 1958, as added by this Schedule, applies in relation to a use or disclosure of information that occurs on or after the commencement of this item, whether the information was obtained before, on or after that commencement.

 Spending authority for third country reception arrangements

Migration Act 1958

 1 After section 198AHA

Insert:

 198AHB Power to take action etc. in relation to third country reception arrangement 1

(1) This section applies if the Commonwealth enters into an arrangement (third country reception arrangement) with a foreign country in relation to the removal of non-citizens from Australia and their acceptance, receipt or ongoing presence in the foreign country.

 2

The Commonwealth may do all or any of the following:

 a

take, or cause to be taken, any action (not including exercising restraint over the liberty of a person) in relation to the third country reception arrangement or the third country reception functions of the foreign country;

 b

make payments, or cause payments to be made, in relation to the third country reception arrangement or the third country reception functions of the foreign country;

 c

do anything else that is incidental or conducive to the taking of such action or the making of such payments.

 3

To avoid doubt, subsection (2) is intended to ensure that the Commonwealth has capacity and authority to take action, without otherwise affecting the lawfulness of that action.

 4

Nothing in this section limits:

 a

any other power or duty under this Act; or

 b

the executive power of the Commonwealth.

 5

In this section:

action includes action in a foreign country.

arrangement includes an arrangement, agreement, understanding, promise or undertaking, whether or not it is legally binding.

third country reception functions, of a foreign country, means the implementation of any law or policy, or the taking of any action, by that country (including, if the foreign country so decides, exercising restraint over the liberty of a person) in connection with the role of that country as a country which has agreed to the acceptance, receipt or ongoing presence of persons who are not citizens of that country, whether the implementation or the taking of action occurs in that country or another country.

 Subclass 070 (Bridging (Removal Pending)) visas

Migration Act 1958

 1 Subsection 76E(2)

Omit “For the avoidance of doubt”, substitute “To avoid doubt”.

 2 Paragraph 76E(4)(b)

Repeal the paragraph, substitute:

 b

either:

 i

the Minister is not satisfied, on the balance of probabilities, that the non-citizen poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence; or

 ii

if the Minister is satisfied, on the balance of probabilities, that the non-citizen poses the substantial risk mentioned in subparagraph (i)—the Minister is not satisfied, on the balance of probabilities, that the imposition of that condition, or those conditions, is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting any part of the Australian community from serious harm by addressing that substantial risk.

 3 After subsection 76E(4)

Insert:

 4A

In determining whether to grant a visa in accordance with subsection (4), the Minister must decide whether to impose each condition prescribed for the purposes of subsection (1) in the same order as required by the regulations.

 4 At the end of section 76E

Add:

serious offence has the same meaning as in Part 070 of Schedule 2 to the Migration Regulations 1994.

 6

To avoid doubt, nothing in this section prevents the grant, from time to time, of a Subclass 070 (Bridging (Removal Pending)) visa to the non-citizen.

 7

In this section:

 5 Application of amendments 1

(1) Subject to subitem (2), paragraph 76E(4)(b) of the Migration Act 1958, as repealed and substituted by this Schedule, applies in relation to a Subclass 070 (Bridging (Removal Pending)) visa:

 a

that is granted on or after the commencement of this item; or

 b

(b) that was granted on or after the commencement of the Migration Amendment (Bridging Visa Conditions) Regulations 2024, but before the commencement of this item; or

 c

(c) that was granted before the commencement of the Migration Amendment (Bridging Visa Conditions) Regulations 2024, if:

 i

(i) as at that commencement, the period within which the holder of the visa was required to make representations to the Minister under paragraph 76E(3)(b) of the Migration Act 1958 had not yet ended; or

 ii

(ii) the holder of the visa had made such representations during that period but, as at that commencement, the Minister had not made a decision in relation to the visa in accordance with subsection 76E(4) of the Migration Act 1958.

 2

(2) If, because of the operation of paragraph (1)(b) or (c) of this item, paragraph 76E(4)(b) of the Migration Act 1958, as repealed and substituted by this Schedule, applies in relation to a Subclass 070 (Bridging (Removal Pending)) visa:

 a

(a) the holder of the visa may make representations to the Minister within 28 days of the commencement of this item as to why the visa should not be subject to one or more conditions prescribed for the purposes of paragraph 76E(1)(a) of the Migration Act 1958; and

 b

(b) for the purposes of paragraph 76E(4)(a) of the Migration Act 1958, the holder of the visa is taken to have made those representations in accordance with an invitation under paragraph 76E(3)(b) of that Act.

 Other amendments relating to subclass 070 (Bridging (Removal Pending)) visas

Migration Act 1958

 1 Subsection 68(5)

Omit all the words from and including “if” to and including “future.”, substitute “if the first visa ceases to be in effect under subsection 82(3) because another Subclass 070 (Bridging (Removal Pending)) visa for the non-citizen comes into effect.”.

 2 Paragraph 76B(1)(b)

Repeal the paragraph, substitute:

 b

any of the following applies:

 i

at the time the visa was granted, there was no real prospect of the removal of the person from Australia becoming practicable in the reasonably foreseeable future;

 ii

the visa was granted under section 195A;

 iii

if the non-citizen has previously held other Bridging R (Class WR) visas—the first of those visas was granted under section 195A; and

 3 Subsection 76E(1)

Omit all the words from and including “if” to and including “future.”, substitute “if the first visa is subject to one or more prescribed conditions.”.

 4 Paragraph 76E(3)(b)

Omit “paragraph (1)(a)”, substitute “subsection (1)”.

 5 Subsection 76E(4)

Omit “paragraph (1)(a)”, substitute “subsection (1)”.

 6 Application of amendments of section 68 of the Migration Act 1958 1

(1) Subsection 68(5) of the Migration Act 1958, as amended by this Schedule, applies in relation to a Subclass 070 (Bridging (Removal Pending)) visa for a non-citizen that ceases to be in effect under subsection 82(3) of that Act on or after the commencement of this item, whether the Subclass 070 (Bridging (Removal Pending)) visa was granted before, on or after the commencement of this item.

 2

(2) Subsection 68(5) of the Migration Act 1958, as in force immediately before the commencement of this item, continues to apply in relation to a Subclass 070 (Bridging (Removal Pending)) visa that ceased to be in effect under subsection 82(3) of that Act during the period:

 a

beginning on 18 November 2023; and

 b

ending immediately before the commencement of this item;

as if the amendments to that subsection made by this Schedule had not been made.

 7 Application of amendments of section 76B of the Migration Act 1958 1

(1) Subparagraph 76B(1)(b)(i) of the Migration Act 1958, as inserted by this Schedule, applies in relation to a person who holds a Subclass 070 (Bridging (Removal Pending)) visa, whether the Subclass 070 (Bridging (Removal Pending)) visa was granted before, on or after the commencement of this item.

 2

(2) Subparagraph 76B(1)(b)(ii) of the Migration Act 1958, as inserted by this Schedule, applies in relation to a person who holds a Subclass 070 (Bridging (Removal Pending)) visa granted on or after the commencement of this item.

 3

(3) Subparagraph 76B(1)(b)(iii) of the Migration Act 1958, as inserted by this Schedule, applies in relation to a person who holds a Subclass 070 (Bridging (Removal Pending)) visa that was granted without an application on or after the commencement of this item, and who previously held a Subclass 070 (Bridging (Removal Pending)) visa granted under section 195A of the Migration Act 1958, whether the Subclass 070 (Bridging (Removal Pending)) visa was granted under section 195A of that Act before, on or after the commencement of this item.

 8 Saving provision relating to amendments of section 76E of the Migration Act 1958

Despite the repeal of paragraphs 76E(1)(a) and (b) of the Migration Act 1958 by this Schedule, a regulation that:

is taken to remain in force, on and after the commencement of this item, as if it had been made for the purposes of subsection 76E(1) of the Migration Act 1958.

[Minister’s second reading speech made in—

House of Representatives on 7 November 2024

Senate on 25 November 2024]

(136/24)

 a

(a) was made before the commencement of this item for the purposes of paragraph 76E(1)(a) of the Migration Act 1958; and

 b

was in force immediately before the commencement of this item;