Explanatory Memorandum
(Circulated by authority of the Minister for Immigration and Border Protection, the Honourable Peter Dutton MP)Schedule 3 - Amendment of the Migration Act
290. The ABF Act establishes the statutory office of the ABF Commissioner, who has under the Minister, the control of the operations of the ABF.
291. This Schedule amends various provisions of the Migration Act to confer on the ABF Commissioner the relevant functions and powers to facilitate his or her control of relevant operations of the ABF.
Migration Act 1958
Item 1 - Subsection 5(1)
292. This item inserts the definition of "Australian Border Force Commissioner" into subsection 5(1) of the Migration Act, which has the same meaning as in the ABF Act.
Items 2 to 72
293. These items amend various provisions of the Migration Act to insert a reference to the "Australian Border Force Commissioner".
294. These amendments will provide the ABF Commissioner with the ability to exercise functions and powers under the various Parts of the Migration Act that are currently exercised by the Secretary, which include:
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- Part 1:
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- Subdivision G (Cancellation of business visas) in Division 3
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- Subdivision F (Inspector powers) in Division 3A;
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- Division 13 (Examination, search and detention);
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- Division 13AA (Identification of immigration detainees);
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- Part 2:
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- Division 14 (Recovery of costs from certain persons);
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- Part 4A:
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- Division 2 (Assessing identifying information);
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- Division 3 (Disclosing identifying information);
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- Part 8: Division 2 (Jurisdiction and procedure of courts);
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- Part 8E:
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- Division 2 (Requiring persons to give information or produce documents);
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- Division 3 (Search warrants); and
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- Part 9: Division 1 (Bogus documents).
295. The ability to exercise a power and perform a function under the provisions mentioned is consistent with an operational responsibility of the ABF Commissioner.
296. For example:
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- Item 2 omits the reference to "or the Secretary" in the definition of "authorised officer" under subsection 5(1) of the Migration Act and substitutes with ", the Secretary or the Australian Border Force Commissioner". This amendment provides the ABF Commissioner with the ability to authorise an officer to exercise a power or perform a function as set out in a provision of the Migration Act.
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- Item 23 inserts "or Australian Border Force Commissioner" after the words "or Secretary" in subsections 253(8) and (9) of the Migration Act. This amendment provides the ABF Commissioner with the ability to direct that a deportee be kept in, or order the release from, immigration detention.
Item 73 - Saving provisions
297. As provided above, items 2 and 23 amend the definition of "authorised officer" under subsection 5(1) and subsections 253(8) and (9) of the Migration Act to provide the ABF Commissioner with relevant powers.
298. This item contain saving provisions, such that:
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- the amendment of the definition of authorised officer in subsection 5(1) of the Migration Act made by this Schedule does not affect the validity of an authorisation that is in force immediately before the commencement of this item; and
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- the amendments of subsections 253(8) and (9) of the Migration Act made by this Schedule do not affect the validity of a direction under subsection 253(8) of that Act, or an order under subsection 253(9) of that Act, that is in force immediately before the commencement of this item.
299. This item ensures that amendments made by items 2 and 23 do not affect the validity of relevant authorisations and directions under subsections 5(1), 253(8) and 253(9) of the Migration Act.