Commonwealth: Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 No. 135, 2014 Compilation No. 2 Compilation date: 18 October 2023 Includes amendments up to: Act No. 74, 2023 Registered: 2 November 2023 About this compilation This compilation This is a compilation of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 that shows the text of the law as amended and in force on 18 October 2023 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents 1 Short title 2 Commencement 3 Schedules Schedule 1—Amendments relating to maritime powers Part 1—Main amendments Maritime Powers Act 2013 Part 2—Other amendments Administrative Decisions (Judicial Review) Act 1977 Immigration (Guardianship of Children) Act 1946 Migration Act 1958 Part 3—Application Schedule 2—Protection visas and other measures Part 1—Protection visas Division 1—Protection visas generally Migration Act 1958 Division 2—Safe haven enterprise visas Migration Act 1958 Migration Regulations 1994 Division 2A—Safe haven enterprise visas: pathways to other visas Migration Act 1958 Migration Regulations 1994 Division 3—Application Part 2—Visa applications taken to be applications for a different visa Division 1—Amendments Migration Act 1958 Division 2—Application Part 3—Deemed visa applications Division 1—Amendments Migration Act 1958 Division 2—Application Part 4—Permanent protection visas and temporary protection visas Division 1—Main amendments Migration Regulations 1994 Division 2—Main amendments commencing immediately after Division 1 Migration Regulations 1994 Division 3—Consequential amendments Migration Regulations 1994 Division 4—Amendments relating to application Migration Regulations 1994 Schedule 2A—Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas Migration Act 1958 Schedule 3—Act‑based visas Part 1—Amendment of the Migration Act 1958 Division 1—Amendments Migration Act 1958 Division 2—Application Part 2—Amendment of the Migration Regulations 1994 Migration Regulations 1994 Schedule 4—Amendments relating to fast track assessment process Part 1—Fast track assessment process Migration Act 1958 Part 2—Application Schedule 5—Clarifying Australia's international law obligations Part 1—Removal of unlawful non‑citizens Division 1—Amendments commencing on the day after Royal Assent Migration Act 1958 Division 2—Amendments if this Act commences after the Migration Amendment (Protection and Other Measures) Act 2015 Part 2—Amendments commencing on Proclamation Migration Act 1958 Part 3—Contingent amendments Division 1—Amendments if this Act commences before the Migration Amendment (Protection and Other Measures) Act 2015 Migration Act 1958 Division 2—Amendments if this Act commences before the Migration Amendment (Regaining Control Over Australia's Protection Obligations) Act 2014 Migration Act 1958 Division 3—Amendments if this Act commences after the Migration Amendment (Regaining Control Over Australia's Protection Obligations) Act 2014 Migration Act 1958 Part 4—Application and transitional provisions Schedule 6—Unauthorised maritime arrivals and transitory persons: newborn children Part 1—Amendments Migration Act 1958 Part 2—Application of amendments Schedule 7—Caseload management Part 1—Amendments Migration Act 1958 Part 2—Application and savings Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act to amend the law relating to migration and maritime powers, and for related purposes 1 Short title This Act may be cited as the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. 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 Column 1 Column 2 Column 3 Provisions Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 15 December 2014 2. Schedule 1 The day after this Act receives the Royal Assent. 16 December 2014 3. Schedule 2, Part 1, Division 1 The day after this Act receives the Royal Assent. 16 December 2014 4. Schedule 2, Part 1, Division 2 A single day to be fixed by Proclamation. 18 April 2015 However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. (F2015L00543) 4A. Schedule 2, Part 1, Division 2A The later of: 18 April 2015 (a) the commencement of the provisions covered by table item 4; and (b) the commencement of Schedule 3 to the Migration Amendment (Protection and Other Measures) Act 2015. However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur. 5. Schedule 2, Part 1, Division 3 The day after this Act receives the Royal Assent. 16 December 2014 6. Schedule 2, Parts 2 and 3 The day after this Act receives the Royal Assent. 16 December 2014 7. Schedule 2, Part 4, Division 1 The day after this Act receives the Royal Assent. 16 December 2014 8. Schedule 2, Part 4, Division 2 Immediately after the commencement of the provisions covered by table item 7. 16 December 2014 9. Schedule 2, Part 4, Divisions 3 and 4 The day after this Act receives the Royal Assent. 16 December 2014 9A. Schedule 2A The day after this Act receives the Royal Assent. 16 December 2014 10. Schedule 3 The day after this Act receives the Royal Assent. 16 December 2014 11. Schedule 4 A single day to be fixed by Proclamation. 18 April 2015 However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. (F2015L00543) 12. Schedule 5, items 1 and 2 The day after this Act receives the Royal Assent. 16 December 2014 13. Schedule 5, item 3 Immediately after item 4 of Schedule 2 to the Migration Amendment (Protection and Other Measures) Act 2015 commences. Never commenced 14. Schedule 5, Part 2 A single day to be fixed by Proclamation. 18 April 2015 However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. (F2015L00543) 15. Schedule 5, item 18 At the same time as the provisions covered by table item 3. 16 December 2014 However, if item 3 of Schedule 2 to the Migration Amendment (Protection and Other Measures) Act 2015 commences at or before that time, the provisions do not commence at all. 16. Schedule 5, items 19 to 22 At the same time as the provisions covered by table item 3. 16 December 2014 However, if Schedule 1 to the Migration Amendment (Regaining Control Over Australia's Protection Obligations) Act 2014 commences at or before that time, the provisions do not commence at all. 17. Schedule 5, item 23 Immediately after the Migration Amendment (Regaining Control Over Australia's Protection Obligations) Act 2014 commences. Never commenced 18. Schedule 5, item 24 Immediately after item 3 of Schedule 3 to the Migration Amendment Act 2014 commences. Never commenced 19. Schedule 5, item 25 Immediately after item 5 of Schedule 3 to the Migration Amendment Act 2014 commences. Never commenced 20. Schedule 5, item 26 Immediately after the Migration Amendment (Regaining Control Over Australia's Protection Obligations) Act 2014 commences. Never commenced 21. Schedule 5, item 27 The day after this Act receives the Royal Assent. 16 December 2014 22. Schedule 5, items 28 and 29 At the same time as the provisions covered by table item 3. 16 December 2014 23. Schedules 6 and 7 The day after this Act receives the Royal Assent. 16 December 2014 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 (1) 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. (2) The amendment of any regulation under subsection (1) does not prevent the regulation, as so amended, from being amended or repealed by the Governor‑General. Schedule 1—Amendments relating to maritime powers Part 1—Main amendments Maritime Powers Act 2013 1 Section 7 Omit: In accordance with international law, the exercise of powers is limited in places outside Australia. 2 Section 8 Insert: destination: (a) in relation to a vessel or aircraft detained under subsection 69(1)—see subsections 69(2), (3) and (3A); or (b) in relation to a person detained under subsection 72(4)—see subsections 72(4), (4A) and (4B). Note: See also section 75C. Marine Safety (Domestic Commercial Vessel) National Law has the meaning given by section 17 of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012. 3 Section 8 (paragraph (e) of the definition of monitoring law) After "Division", insert "73 or". 4 Section 11 Before "For the purposes", insert "(1)". 5 At the end of section 11 Add: (2) To avoid doubt, a continuous exercise of powers does not end merely because the destination to which a vessel, aircraft or person is to be taken (or caused to be taken) is changed to a different place under subsection 69(3A) or 72(4B). 6 At the end of Division 2 of Part 2 Add: 22A Failure to consider international obligations etc. does not invalidate authorisation (1) The exercise of a power to give an authorisation under a provision of this Division is not invalid: (a) because of a failure to consider Australia's international obligations, or the international obligations or domestic law of any other country; or (b) because of a defective consideration of Australia's international obligations, or the international obligations or domestic law of any other country; or (c) because the exercise of the power is inconsistent with Australia's international obligations. (2) Subsection (1) is not to be taken to imply that the exercise of a power under any other provision of this Act is invalid for a reason of a kind specified in paragraph (1)(a), (b) or (c). 22B Rules of natural justice do not apply to authorisations (1) The rules of natural justice do not apply to the exercise of a power to give an authorisation under a provision of this Division. (2) Subsection (1) is not to be taken to imply that the rules of natural justice do apply in relation to the exercise of powers under any other provision of this Act. 7 Paragraph 31(a) After "investigate", insert "or prevent". 8 Subsection 41(1) (note) Omit "Note:", substitute "Note 1:". 9 At the end of subsection 41(1) Add: Note 2: This section does not apply to the exercise of powers under Divisions 7 and 8 of Part 3 in some circumstances: see section 75D. 10 At the end of subsection 69(1) Add: Note: For other provisions affecting powers under this section, see section 69A and Division 8A. 11 Subsections 69(2) and (3) Repeal the subsections, substitute: (2) The officer may: (a) take the vessel or aircraft, or cause the vessel or aircraft to be taken, to a place (the destination); and (b) remain in control of the vessel or aircraft, or require the person in charge of the vessel or aircraft to remain in control of the vessel or aircraft, at the destination, until whichever of the following occurs first: (i) the vessel or aircraft is returned to a person referred to in subsection 87(1); (ii) action is taken as mentioned in subsection 87(3) in relation to the vessel or aircraft. (3) The destination may be: (a) in the migration zone; or (b) outside the migration zone (including outside Australia). Note: Section 75C contains additional provisions about the place that may be the destination. (3A) A maritime officer may change the destination to a different place at any time (including a time after arrival at the place that was previously the destination). If the destination is changed to a different place: (a) that different place is then the destination; but (b) this does not affect the exercise of powers under this Act before the change. Note: It is possible that the destination may change more than once. 12 After section 69 Insert: 69A Additional provisions relating to taking a vessel or aircraft to a destination under section 69 (1) For the purpose of taking a vessel or aircraft (or causing a vessel or aircraft to be taken) to a destination under paragraph 69(2)(a), the vessel or aircraft may be detained under subsection 69(1): (a) for any period reasonably required: (i) to decide which place should be the destination; or (ii) to consider whether the destination should be changed to a different place under subsection 69(3A), and (if it should be changed) to decide what that different place is; and (b) for any period reasonably required for the Minister to consider whether to make or give a determination or direction under section 75D, 75F or 75H in relation to: (i) a matter referred to in subparagraph (a)(i) or (ii); or (ii) any other matter relating to the exercise of powers in relation to the vessel or aircraft, or in relation to persons on (or suspected as having been on) the vessel or aircraft; and (c) for the period it actually takes to travel to the destination. Note: The total period for which the vessel or aircraft is detained may be longer than the periods covered by this subsection: see subsection (3) and section 87. (2) For the purpose of paragraph (1)(c): (a) the period it actually takes to travel to the destination may include stopovers at other places on the way to the destination, and time for other logistical, operational or other contingencies relating to travelling to the destination; and (b) there is no requirement that the most direct route to the destination must be taken. (3) Days in periods covered by subsection (1) do not count towards the 28 day limit specified in paragraph 87(2)(a). 13 Subsection 72(1) (note) Omit "Note:", substitute "Note 1:". 14 At the end of subsection 72(1) Add: Note 2: For other provisions affecting powers under this section, see section 72A and Division 8A. 15 Subsections 72(3) and (4) Repeal the subsections, substitute: (3) A maritime officer may require the person to remain on the vessel or aircraft until whichever of the following occurs first: (a) the vessel or aircraft is returned to a person referred to in subsection 87(1); (b) action is taken as mentioned in subsection 87(3) in relation to the vessel or aircraft. Note: It is an offence to fail to comply with a requirement under this subsection: see section 103. (4) A maritime officer may detain the person and take the person, or cause the person to be taken, to a place (the destination). (4A) The destination may be: (a) in the migration zone; or (b) outside the migration zone (including outside Australia). Note: Section 75C contains additional provisions about the place that may be the destination. (4B) A maritime officer may change the destination to a different place at any time (including a time after arrival at the place that was previously the destination). If the destination is changed to a different place: (a) that different place is then the destination; but (b) this does not affect the exercise of powers under this Act before the change. Note: It is possible that the destination may change more than once. 16 Subsection 72(5) Omit "another place", substitute "the destination". 17 Paragraphs 72(5)(a) and (b) After "or aircraft", insert ", or in a particular place on a vessel or aircraft". 18 After section 72 Insert: 72A Additional provisions relating to taking a person to a destination under subsection 72(4) (1) A person may be detained under subsection 72(4): (a) for any period reasonably required: (i) to decide which place should be the destination; or (ii) to consider whether the destination should be changed to a different place under subsection 72(4B), and (if it should be changed) to decide what that different place is; and (b) for any period reasonably required for the Minister to consider whether to make or give a determination or direction under section 75D, 75F or 75H in relation to: (i) a matter referred to in subparagraph (a)(i) or (ii); or (ii) any other matter relating to the exercise of powers in relation to the person; and (c) for the period it actually takes to travel to the destination; and (d) for any period reasonably required to make and effect arrangements relating to the release of the person. (2) For the purpose of paragraph (1)(c): (a) the period it actually takes to travel to the destination may include stopovers at other places on the way to the destination, and time for other logistical, operational or other contingencies relating to travelling to the destination; and (b) there is no requirement that the most direct route to the destination must be taken. (3) The person must not be detained under subsection 72(4) for any longer than is permitted by subsection (1) of this section. (4) Powers may be exercised in accordance with subsection 72(5) in relation to the person at any time while the person continues to be detained under subsection 72(4). (5) Subsection (3) does not prevent: (a) the arrest of the person; or (b) the detention of the person under another Australian law; or (c) the exercise of any other power in relation to the person. 19 After Division 8 of Part 3 Insert: Division 8A—General provisions relating to powers under Divisions 7 and 8 75A Failure to consider international obligations etc. does not invalidate exercise of powers (1) The exercise of a power under section 69, 69A, 71, 72, 72A, 74, 75D, 75F, 75G or 75H is not invalid: (a) because of a failure to consider Australia's international obligations, or the international obligations or domestic law of any other country; or (b) because of a defective consideration of Australia's international obligations, or the international obligations or domestic law of any other country; or (c) because the exercise of the power is inconsistent with Australia's international obligations. (2) Subsection (1) is not to be taken to imply that the exercise of a power under any other provision of this Act is invalid for a reason of a kind specified in paragraph (1)(a), (b) or (c). 75B Rules of natural justice do not apply to exercise of powers (1) The rules of natural justice do not apply to the exercise of powers under section 69, 69A, 71, 72, 72A, 74, 75D, 75F, 75G or 75H. (2) Subsection (1) is not to be taken to imply that the rules of natural justice do apply in relation to the exercise of powers under any other provision of this Act. 75C Additional provisions about destination to which a vessel, aircraft or person may be taken (1) To avoid doubt: (a) the destination to which a vessel, aircraft or person is taken (or caused to be taken) under section 69 or 72: (i) does not have to be in a country; and (ii) without limiting subparagraph (i)—may be just outside a country; and (iii) may be a vessel; and (b) a vessel, aircraft or person may be taken (or caused to be taken) to a destination under section 69 or 72: (i) whether or not Australia has an agreement or arrangement with any other country relating to the vessel or aircraft (or the persons on it), or the person; and (ii) irrespective of the international obligations or domestic law of any other country. Note: The definition of country in section 8 includes the territorial sea and archipelagic waters of the country, as well as various other areas. (2) However, if the destination is in another country, section 40 (exercising powers in other countries) must be complied with. 75D Exercising powers between countries (1) Section 41 (foreign vessels between countries) does not apply to an exercise of power under section 69, 69A, 71, 72, 72A or 74 if: (a) the exercise of power is: (i) covered by a determination in force under subsection (2); or (ii) required by a direction in force under paragraph 75F(2)(a); and (b) the exercise of power is part of a continuous exercise of powers that commenced in accordance with any applicable requirements of Division 5 of Part 2. (2) For the purpose of subparagraph (1)(a)(i), the Minister may make a written determination that is expressed to cover the exercise, in a specified circumstance, of powers under one or more of the sections referred to in subsection (1). (3) The Minister may, in writing, vary or revoke a determination made under subsection (2). (4) The only condition for the exercise of the power to make a determination under subsection (2), or to vary a determination, is that the Minister thinks that it is in the national interest to make or vary the determination. Note: There are no conditions for the exercise of the power to revoke a determination. (5) A determination under subsection (2), or an instrument varying or revoking a determination, comes into force: (a) unless paragraph (b) applies—when it is made; or (b) if the determination or instrument specifies a later time as the time when it is to come into force—at that later time. (6) A determination under subsection (2) remains in force until whichever of the following occurs first: (a) an instrument revoking the determination comes into force; (b) if the determination is expressed to cease to be in force at a specified time—the time so specified. (7) A determination under subsection (2), or a variation or revocation of a determination, is not a legislative instrument. 75E Powers are not limited by the Migration Act 1958 (1) Powers under sections 69, 69A, 71, 72, 72A, 74, 75D, 75F, 75G or 75H are not in any respect subject to, or limited by, the Migration Act 1958 (including regulations and other instruments made under that Act). (2) Subsection (1) of this section is not to be taken to imply that other powers under this Act are subject to, or limited by, the Migration Act 1958 (including regulations and other instruments made under that Act). 75F Minister may give directions about exercise of powers (1) This section applies in relation to the powers in sections 69, 69A, 71, 72 and 72A. (2) The Minister may, in writing, give directions: (a) requiring the exercise of a power or powers in a specified circumstance, or in circumstances in a specified class, in a specified manner; or (b) relating to the exercise of a power or powers in a specified circumstance, in a specified class of circumstances or more generally. (3) Without limiting subsection (2), the Minister may give a direction under that subsection: (a) specifying a place that is to be, or is not to be, the destination to which a vessel, aircraft or person is taken under paragraph 69(2)(a) or subsection 72(4); or (b) specifying matters to be taken into account in deciding the destination to which a vessel, aircraft or person is to be so taken. (4) The Minister may, in writing, vary or revoke a direction given under subsection (2). (5) The only condition for the exercise of the power to give a direction under subsection (2), or to vary a direction, is that the Minister thinks that it is in the national interest to give or vary the direction. Note: There are no conditions for the exercise of the power to revoke a direction. (6) A direction under subsection (2) may specify circumstances in which the direction need not be complied with. (7) A direction under subsection (2), or an instrument varying or revoking a direction, comes into force: (a) unless paragraph (b) applies—when it is made; or (b) if the direction or instrument specifies a later time as the time when it is to come into force—at that later time. (8) A direction under subsection (2) remains in force until whichever of the following occurs first: (a) an instrument revoking the direction comes into force; (b) if the direction is expressed to cease to be in force at a specified time—the time so specified. (9) If the Minister gives a direction as mentioned in paragraph (2)(a): (a) the direction is taken to constitute an authorisation of the exercise of the power or powers in accordance with the direction; and (b) that authorisation is taken (despite section 23) to remain in force while the direction is in force. (10) A direction under subsection (2), or an instrument varying or revoking a direction, is not a legislative instrument. 75G Compliance with directions (1) Subject to subsections (2) and (3) of this section, and subsection 75F(6), a maritime officer must comply with any applicable directions in force under section 75F. However, a failure to comply does not invalidate any exercise of power by a maritime officer. (2) A maritime officer who is a member of the Australian Defence Force is not required to comply with a direction under section 75F to the extent that the direction is inconsistent with an order or other exercise of command under sections 8 and 9 of the Defence Act 1903. (3) A maritime officer is not required to comply with a direction under section 75F to the extent that he or she reasonably believes that it would be unsafe to do so. 75H Certain maritime laws do not apply to certain vessels detained or used in exercise of powers Vessels detained under section 69 (1) The laws specified in subsection (3) (including regulations and other instruments made under those laws) do not apply in relation to a vessel at any time when the vessel is detained in exercise (or purported exercise) of powers under section 69. Vessels used in exercise of powers under subsections 72(4) or (5) (2) The laws specified in subsection (3) (including regulations and other instruments made under those laws) do not apply in relation to a vessel at any time when the following paragraphs are satisfied: (a) the vessel is being used in the exercise (or purported exercise) of powers under subsection 72(4) or (5), or the Commonwealth intends that the vessel is for use in the exercise of such powers; (b) the vessel is specified in, or is included in a class of vessels specified in, a determination under subsection (4) that is in force; (c) if the determination states that it has effect, in relation to the vessel or class of vessels, only in specified circumstances—those circumstances exist; (d) if the determination states that it has effect, in relation to the vessel or the class of vessels, only in one or more specified periods—the time is in that period, or one of those periods. Note: Paragraph (c) and (d) do not have to be satisfied unless the determination states as mentioned in those paragraphs. The laws that are disapplied (3) The laws that, because of subsection (1) or (2), do not apply in relation to a vessel are: (a) the Navigation Act 2012; and (b) the Shipping Registration Act 1981; and (c) the Marine Safety (Domestic Commercial Vessel) National Law. Determinations of vessels and classes of vessels (4) For the purpose of paragraph (2)(b), the Minister may make a written determination specifying a vessel, or a class of vessels. The determination may also state either or both of the following: (a) that it has effect, in relation to the vessel or class of vessels, only in specified circumstances; (b) that it has effect, in relation to the vessel or the class of vessels, only in one or more specified periods. (5) The Minister may, in writing, vary or revoke a determination made under subsection (4). (6) The only condition for the exercise of the power to make a determination under subsection (4), or to vary a determination, is that the Minister thinks that it is in the national interest to make or vary the determination. Note: There are no conditions for the exercise of the power to revoke a determination. (7) A determination under subsection (4), or an instrument varying or revoking a determination, comes into force: (a) unless paragraph (b) applies—when it is made; or (b) if the determination or instrument specifies a later time as the time when it is to come into force—at that later time. (8) A determination under subsection (4) remains in force until whichever of the following occurs first: (a) an instrument revoking the determination comes into force; (b) if the determination is expressed to cease to be in force at a specified time—the time so specified. (9) A determination under subsection (4), or a variation or revocation of a determination, is not a legislative instrument. 20 Section 79 Omit: Written notice must be given to the owner or person who was in possession or control of a seized, retained or detained thing. substitute: Written notice must be given to the owner of a seized, retained or detained thing, or to a person who had possession or control of the thing. 21 Paragraph 80(1)(b) Omit "the person", substitute "a person". 22 At the end of section 81 Add: (3) If a detained vessel or aircraft is to be taken to a destination under paragraph 69(2)(a), the information must also explain the effect of subsection 69A(3). 23 Paragraphs 86(1)(b) and 87(1)(b) Omit "the person", substitute "a person". 24 At the end of subsection 87(2) Add: Note: In the case of a detained vessel or aircraft that is taken to a destination under paragraph 69(2)(a), days in periods covered by subsection 69A(1) (such as the period it takes to travel to the destination) do not count towards the 28 day limit: see subsection 69A(3). 25 Subsection 93(1) Repeal the subsection, substitute: (1) If the thing is disposed of under paragraph 91(1)(a), (b) or (c) (reasons for disposal), the Minister must give written notice, as soon as practicable after the disposal, to: (a) the person who owned the thing; or (b) a person who had possession or control of the thing immediately before it was seized, retained or detained. 26 Subsection 93(3) Omit "the person", substitute "any person to whom the notice may be given under that subsection". 27 Section 94 Omit: Persons from detained vessels and aircraft may be required to remain on the vessel or aircraft, or may be taken to another place. 28 Section 97 Repeal the section. 29 Section 107 After "proceeding", insert ", whether civil or criminal,". 30 Subsection 121(1) After "this Act", insert ", other than the powers under section 75D, 75F or 75H,". Part 2—Other amendments Administrative Decisions (Judicial Review) Act 1977 31 After paragraph (p) of Schedule 1 Insert: (pa) decisions under section 75D, 75F or 75H of the Maritime Powers Act 2013; Immigration (Guardianship of Children) Act 1946 32 At the end of paragraph 6(2)(d) Add ", or under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013". 33 Paragraph 8(2)(b) After "migration law", insert "or the Maritime Powers Act 2013". 34 Paragraph 8(2)(c) Repeal the paragraph, substitute: (c) imposes any obligation on the Minister or another Minister to exercise, or to consider exercising, any power conferred by or under the migration law or the Maritime Powers Act 2013. 35 At the end of paragraph 8(3)(d) Add ", or under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013". Migration Act 1958 36 Subsection 5(1) (paragraph (b) of the definition of transitory person) Omit "or paragraph 72(4)(b) of the Maritime Powers Act 2013", substitute "or under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013". 37 Paragraph 5AA(2)(ba) Repeal the paragraph, substitute: (ba) the person entered the migration zone as a result of the exercise of powers under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013; or 38 Subparagraph 42(2A)(c)(i) Omit "or 72(4) of the Maritime Powers Act 2013", substitute "or under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013". Part 3—Application 39 Application of amendments of the Maritime Powers Act 2013 (1) Subject to this item, the amendments of the Maritime Powers Act 2013 made by Part 1 of this Schedule (the amending Part) apply in relation to the exercise (or continued exercise) of powers under that Act after the commencement of the amending Part, even if: (a) an authorisation for the exercise of the powers was given under Division 2 of Part 2 of that Act before the commencement of the amending Part; or (b) the powers are exercised: (i) in the course of a continuous exercise of powers that started before the commencement of the amending Part; or (ii) without limiting subparagraph (i)—in relation to a person, vessel or aircraft who or that started to be detained, or otherwise held, under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013 before that commencement; or (iii) in any other situation in relation to which powers were (or could have been) exercised under that Act before that commencement. (2) The amendments of the Maritime Powers Act 2013 made by item 3 (so far as it affects the giving of authorisations), and item 6, of the amending Part apply in relation to authorisations given under Division 2 of Part 2 of that Act after the commencement of the amending Part. (3) Section 75H of the Maritime Powers Act 2013, as inserted by item 19 of the amending Part, applies to: (a) vessels that, after the commencement of the amending Part, are detained as mentioned in subsection 75H(1), even if the vessels started to be so detained before that commencement; and (b) vessels that, after the commencement of the amending Part, are being used, or that are intended for use, as mentioned in paragraph 75H(2)(a), even if the vessels started to be so used, or intended for use, before that commencement. (4) The amendments of the Maritime Powers Act 2013 made by items 21, 23, 25 and 26 of the amending Part apply after the commencement of the amending Part in relation to a seized, retained or detained thing (including a vessel or aircraft), even if the exercise of power by which the thing was first seized, retained or detained occurred before that commencement. (5) The amendments of the Maritime Powers Act 2013 made by the amending Part do not, by implication, affect the interpretation of that Act, as in force before the commencement of the amending Part, in relation to the exercise of powers, or the giving of authorisations, under that Act before that commencement. Schedule 2—Protection visas and other measures Part 1—Protection visas Division 1—Protection visas generally Migration Act 1958 1 Subsection 5(1) Insert: protection visa has the meaning given by section 35A. Note: Section 35A covers the following: (a) permanent protection visas (classified by the Migration Regulations 1994 as Protection (Class XA) visas when this definition commenced); (b) other protection visas formerly provided for by subsection 36(1); (c) temporary protection visas (classified by the Migration Regulations 1994 as Temporary Protection (Class XD) visas when this definition commenced); (d) any additional classes of permanent or temporary visas that are prescribed as protection visas by the regulations. See also section 36 and Subdivision AL of Division 3 of Part 2. 2 At the end of subsection 31(1) Add: Note: See also subsection 35A(4), which allows additional classes of permanent and temporary visas to be prescribed as protection visas by regulations made for the purposes of this subsection. 3 Subsection 31(2) Omit "sections 32, 33, 34, 35, 36, 37, 37A, 38, 38A and 38B", substitute: the following provisions: (a) section 32 (special category visas); (b) section 33 (special purpose visas); (c) section 34 (absorbed person visas); (d) section 35 (ex‑citizen visas); (e) subsection 35A(2) (permanent protection visas); (f) subsection 35A(3) (temporary protection visas); (g) section 37 (bridging visas); (h) section 37A (temporary safe haven visas); (i) section 38 (criminal justice visas); (j) section 38A (enforcement visas); (k) section 38B (maritime crew visas). 4 Subsection 31(3) Omit "36", substitute "35A". 5 After section 35 Insert: 35A Protection visas—classes of visas (1) A protection visa is a visa of a class provided for by this section. (2) There is a class of permanent visas to be known as permanent protection visas. Note: These visas were classified by the Migration Regulations 1994 as Protection (Class XA) visas when this section commenced. (3) There is a class of temporary visas to be known as temporary protection visas. Note: These visas were classified by the Migration Regulations 1994 as Temporary Protection (Class XD) visas when this section commenced. (4) Regulations made for the purposes of subsection 31(1) may prescribe additional classes of permanent and temporary visas as protection visas. (5) A class of visas that was formerly provided for by subsection 36(1), as that subsection was in force before the commencement of this section, is also a class of protection visas for the purposes of this Act and the regulations. Example: An example of a class of visas for subsection (5) is the class of visas formerly classified by the Migration Regulations 1994 as Protection (Class AZ) visas. These visas can no longer be granted. Note: This section commenced, and subsection 36(1) was repealed, on the commencement of Part 1 of Schedule 2 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. (6) The criteria for a class of protection visas are: (a) the criteria set out in section 36; and (b) any other relevant criteria prescribed by regulation for the purposes of section 31. Note: See also Subdivision AL. 6 Section 36 (heading) Repeal the heading, substitute: 36 Protection visas—criteria provided for by this Act 7 Subsection 36(1) Repeal the subsection. 8 Subparagraph 36(2)(b)(ii) After "protection visa", insert "of the same class as that applied for by the applicant". 9 At the end of subparagraph 36(2)(c)(ii) Add "of the same class as that applied for by the applicant". 10 Subsection 48A(2) (definition of application for a protection visa) Omit "includes", substitute "means". 11 Subsection 48A(2) (paragraph (aa) of the definition of application for a protection visa) Repeal the paragraph, substitute: (aa) an application for a visa of a class provided for by section 35A (protection visas—classes of visas), including (without limitation) an application for a visa of a class formerly provided for by subsection 36(1) that was made before the commencement of this paragraph; or Note: Visas formerly provided for by subsection 36(1) are provided for by subsection 35A(5). Subsection 36(1) was repealed by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, which also inserted section 35A and this paragraph. 12 Subsection 48A(2) (paragraphs (a) and (b) of the definition of application for a protection visa) Omit "; and", substitute "; or". Division 2—Safe haven enterprise visas Migration Act 1958 13 Subsection 5(1) (after paragraph (b) of the note at the end of the definition of protection visa) Insert: (ba) safe haven enterprise visas; 14 After paragraph 31(2)(f) Insert: (fa) subsection 35A(3A) (safe haven enterprise visas); 15 After paragraph 31(3A)(c) Insert: (ca) safe haven enterprise visas (see subsection 35A(3A)); 16 After subsection 35A(3) Insert: (3A) There is a class of temporary visas to be known as safe haven enterprise visas. (3B) The purpose of safe haven enterprise visas is both to provide protection and to encourage enterprise through earning and learning while strengthening regional Australia. Note: If a person satisfies the requirements for working, study and accessing social security prescribed for the purposes of paragraph 46A(1A)(c), section 46A will not bar the person from making a valid application for any of the onshore visas prescribed for the purposes of paragraph 46A(1A)(b). This does not include permanent protection visas. 17 After paragraph 46(5)(c) Insert: (ca) safe haven enterprise visas (see subsection 35A(3A)); 18 After paragraph 46AA(1)(c) Insert: (ca) safe haven enterprise visas (see subsection 35A(3A)); 18A At the end of subsection 85(2) Add "or safe haven enterprise visas". Migration Regulations 1994 18B After subparagraph 1401(3)(d)(i) Insert: (ia) does not hold, and has not ever held, a Safe Haven Enterprise (Class XE) visa; and 18C After subparagraph 1403(3)(d)(i) Insert: (ia) holds, or has ever held, a Safe Haven Enterprise (Class XE) visa; or 18D At the end of Schedule 1 Add: 1404. Safe Haven Enterprise (Class XE) (1) Form: 790. (2) Visa application charge: (a) first instalment (payable at the time the application is made): (i) for an applicant who is in immigration detention and has not been immigration cleared: First instalment Item Component Amount 1 Base application charge Nil 2 Additional applicant charge for an applicant who is at least 18 Nil 3 Additional applicant charge for an applicant who is less than 18 Nil (ii) for any other applicant: First instalment Item Component Amount 1 Base application charge $35 2 Additional applicant charge for an applicant who is at least 18 Nil 3 Additional applicant charge for an applicant who is less than 18 Nil Note: Regulation 2.12C explains the components of the first instalment of visa application charge and specifies the amounts of subsequent temporary application charge and non‑internet application charge. Not all of the components may apply to a particular application. Additional applicant charge is paid by an applicant who claims to be a member of the family unit of another applicant and seeks to combine the application with that applicant's application. (b) the second instalment (payable before grant of visa) is nil. (3) Other: (a) Application must be made in Australia. (b) Applicant must be in Australia. (c) Application by a person claiming to be a member of the family unit of a person who is an applicant for a Safe Haven Enterprise (Class XE) visa may be made at the same time and place as, and combined with, the application by that person. (d) An application by a person for a Safe Haven Enterprise (Class XE) visa is valid only if the person: (i) holds, or has ever held, a Temporary Protection (Class XD) visa or a Subclass 785 (Temporary Protection) visa, including such a visa granted before 2 December 2013; or (ii) holds, or has ever held, a Safe Haven Enterprise (Class XE) visa; or (iii) holds, or has ever held, a Temporary Safe Haven (Class UJ) visa; or (iv) holds, or has ever held, a Temporary (Humanitarian Concern) (Class UO) visa; or (v) did not hold a visa that was in effect on the person's last entry into Australia; or (vi) is an unauthorised maritime arrival; or (vii) was not immigration cleared on the person's last entry into Australia. (e) An application by a person for a Safe Haven Enterprise (Class XE) visa is valid only if the person indicates in writing an intention to work or study while accessing minimum social security benefits in a regional area specified under subclause (4). (4) The Minister may, by legislative instrument, specify a regional area for the purposes of these regulations. Note: See also regulation 2.06AAB (visa applications by holders and certain former holders of safe haven enterprise visas). (5) Subclasses: 790 (Safe Haven Enterprise) 18E After Part 785 of Schedule 2 Insert: Subclass 790—Safe Haven Enterprise 790.1—Interpretation 790.111 For the purposes of this Part, a person (A) is a member of the same family unit as another person (B) if: (a) A is a member of B's family unit; or (b) B is a member of A's family unit; or (c) A and B are members of the family unit of a third person. 790.2—Primary criteria Note: All applicants must satisfy the primary criteria. 790.21—Criteria to be satisfied at time of application 790.211 (1) Subclause (2) or (3) is satisfied. (2) The applicant: (a) claims that a criterion mentioned in paragraph 36(2)(a) or (aa) of the Act is satisfied in relation to the applicant; and (b) makes specific claims as to why that criterion is satisfied. Note: Paragraphs 36(2)(a) and (aa) of the Act set out criteria for the grant of protection visas to non‑citizens in respect of whom Australia has protection obligations. (3) The applicant claims to be a member of the same family unit as a person: (a) to whom subclause (2) applies; and (b) who is an applicant for a Subclass 790 (Safe Haven Enterprise) visa. Note: See paragraphs 36(2)(b) and (c) of the Act. 790.22—Criteria to be satisfied at time of decision 790.221 (1) Subclause (2) or (3) is satisfied. (2) The Minister is satisfied that a criterion mentioned in paragraph 36(2)(a) or (aa) of the Act is satisfied in relation to the applicant. Note: Paragraphs 36(2)(a) and (aa) of the Act set out criteria for the grant of protection visas to non‑citizens in respect of whom Australia has protection obligations. (3) The Minister is satisfied that: (a) the applicant is a member of the same family unit as an applicant mentioned in subclause (2); and (b) the applicant mentioned in subclause (2) has been granted a Subclass 790 (Safe Haven Enterprise) visa. Note: See paragraphs 36(2)(b) and (c) of the Act. 790.222 The applicant has undergone a medical examination carried out by any of the following (a relevant medical practitioner): (a) a Medical Officer of the Commonwealth; (b) a medical practitioner approved by the Minister for the purposes of this paragraph; (c) a medical practitioner employed by an organisation approved by the Minister for the purposes of this paragraph. 790.223 (1) One of subclauses (2) to (4) is satisfied. (2) The applicant has undergone a chest x‑ray examination conducted by a medical practitioner who is qualified as a radiologist in Australia. (3) The applicant is under 11 years of age and is not a person in respect of whom a relevant medical practitioner has requested the examination mentioned in subclause (2). (4) The applicant is a person: (a) who is confirmed by a relevant medical practitioner to be pregnant; and (b) who has been examined for tuberculosis by a chest clinic officer employed by a health authority of a State or Territory; and (c) who has signed an undertaking to place herself under the professional supervision of a health authority in a State or Territory and to undergo any necessary treatment; and (d) who the Minister is satisfied should not be required to undergo a chest x‑ray examination at this time. 790.224 (1) A relevant medical practitioner has considered: (a) the results of any tests carried out for the purposes of the medical examination required under clause 790.222; and (b) the radiological report (if any) required under clause 790.223 in respect of the applicant. (2) If the relevant medical practitioner: (a) is not a Medical Officer of the Commonwealth; and (b) considers that the applicant has a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; the relevant medical practitioner has referred any relevant results and reports to a Medical Officer of the Commonwealth. 790.225 If a Medical Officer of the Commonwealth considers that the applicant has a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community, arrangements have been made, on the advice of the Medical Officer of the Commonwealth, to place the applicant under the professional supervision of a health authority in a State or Territory to undergo any necessary treatment. 790.226 The applicant: (a) satisfies public interest criteria 4001 and 4003A; and (b) if the applicant had turned 18 at the time of application—satisfies public interest criterion 4019. 790.227 The Minister is satisfied that the grant of the visa is in the national interest. 790.228 (1) If the applicant is a child to whom subregulation 2.08(2) applies, subclause (2) is satisfied. (2) The Minister is satisfied that: (a) the applicant is a member of the same family unit as an applicant to whom subclause 790.221(2) applies; and (b) the applicant to whom subclause 790.221(2) applies has been granted a Subclass 790 (Safe Haven Enterprise) visa. Note 1: Subregulation 2.08(2) applies, generally, to a child born to a non‑citizen after the non‑citizen has applied for a visa but before the application is decided. Note 2: Subclause 790.221(2) applies if the Minister is satisfied that Australia has protection obligations in respect of the applicant as mentioned in paragraph 36(2)(a) or (aa) of the Act. 790.3—Secondary criteria Note: All applicants must satisfy the primary criteria. 790.4—Circumstances applicable to grant 790.411 The applicant must be in Australia when the visa is granted. 790.5—When visa is in effect 790.511 Temporary visa permitting the holder to travel to, enter and remain in Australia until: (a) if the holder of the temporary visa (the first visa) makes a valid application for another Subclass 790 (Safe Haven Enterprise) visa within 5 years after the grant of the first visa—the day when the application is finally determined or withdrawn; or (b) in any other case—the end of 5 years from the date of grant of the first visa. 790.6—Conditions 790.611 Conditions 8565 and 8570. Note: There is nothing in the Act or these regulations which restricts the ability of the holder of the visa to study or work as he or she sees fit. Division 2A—Safe haven enterprise visas: pathways to other visas Migration Act 1958 18F After subsection 46A(1) Insert: (1A) Subsection (1) does not apply in relation to an application for a visa if: (a) either: (i) the applicant holds a safe haven enterprise visa (see subsection 35A(3A)); or (ii) the applicant is a lawful non‑citizen who has ever held a safe haven enterprise visa; and (b) the application is for a visa prescribed for the purposes of this paragraph; and (c) the applicant satisfies any employment, educational or social security benefit requirements prescribed in relation to the safe haven enterprise visa for the purposes of this paragraph. Migration Regulations 1994 18G After regulation 2.06AAA Insert: 2.06AAB Visa applications by holders and certain former holders of safe haven enterprise visas. (1) For paragraph 46A(1A)(b) of the Act, visas of the subclasses listed in the following table are prescribed: Visas for which holders and certain former holders of safe haven enterprise visas may apply Item Visa subclass 1 Subclass 132 (Business Talent) 2 Subclass 143 (Contributory Parent) 3 Subclass 186 (Employer Nomination Scheme) 4 Subclass 187 (Regional Sponsored Migration Scheme) 5 Subclass 188 (Business Innovation and Investment (Provisional)) 6 Subclass 189 (Skilled—Independent) 7 Subclass 190 (Skilled—Nominated) 8 Subclass 402 (Training and Research) 9 Subclass 405 (Investor Retirement) 10 Subclass 416 (Special Program) 11 Subclass 445 (Dependent Child) 12 Subclass 457 (Temporary Work (Skilled)) 13 Subclass 476 (Skilled—Recognised Graduate) 14 Subclass 489 (Skilled—Regional (Provisional)) 15 Subclass 570 (Independent ELICOS Sector) 16 Subclass 571 (Schools Sector) 17 Subclass 572 (Vocational Education and Training Sector) 18 Subclass 573 (Higher Education Sector) 19 Subclass 574 (Postgraduate Research Sector) 20 Subclass 575 (Non‑Award Sector) 21 Subclass 580 (Student Guardian) 22 Subclass 801 (Partner) 23 Subclass 802 (Child) 24 Subclass 804 (Aged Parent) 25 Subclass 820 (Partner) 26 Subclass 835 (Remaining Relative) 27 Subclass 836 (Carer) 28 Subclass 837 (Orphan Relative) 29 Subclass 838 (Aged Dependent Relative) 30 Subclass 858 (Distinguished Talent) 31 Subclass 864 (Contributory Aged Parent) 32 Subclass 884 (Contributory Aged Parent (Temporary)) (2) For the purposes of paragraph 46A(1A)(c) of the Act, an applicant for a visa who currently holds, or has ever held, a safe haven enterprise visa must, for a period or periods totalling 42 months (which need not be continuous) while the visa is (or was) in effect, satisfy one of the following requirements: (a) the applicant does not receive any social security benefits determined under subregulation (3), and is engaged in employment, as determined under that subregulation, in a regional area specified under subclause 1404(4) of Schedule 1; (b) the applicant is enrolled in full‑time study at an educational institution, as determined under subregulation (3), in a regional area specified under subclause 1404(4) of Schedule 1; (c) the applicant satisfies a combination of the requirements in paragraph (a) and paragraph (b), at different times. (3) The Minister may, by legislative instrument, make a determination for the purposes of paragraphs (2)(a) and (b). Division 3—Application 19 Application of amendments (1) The amendments of the Migration Act 1958 made by Division 1 of this Part: (a) apply in relation to an application for a visa that had not been finally determined immediately before the commencement of that Division; and (b) apply in relation to an application for a visa made on or after the commencement of that Division; and (c) in the case of the amendments of section 48A of that Act made by that Division—apply in relation to an application for a protection visa mentioned in paragraph 48A(1)(a) or (b), or paragraph 48A(1AA)(a) or (b), of that Act that was made, or taken to have been made: (i) on or after the commencement of that Division; or (ii) at any time before the commencement of that Division (whether or not the application had been finally determined at that time). (2) The amendments of the Migration Act 1958 made by Division 2 of this Part apply in relation to an application for a visa made on or after the commencement of that Division. (3) The amendments of the Migration Act 1958 and the Migration Regulations