The Migration Act 1958 is an Act of the Parliament of Australia that governs immigration to Australia. It set up Australia’s universal visa system. Its long title is "An Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons." The 1958 Act replaced the Immigration Restriction Act 1901, which had formed the basis of the White Australia policy, abolishing the infamous "dictation test", as well as removing many of the other discriminatory provisions in the 1901 Act. The 1958 Act has been amended a number of times. Deportation decisions, provided for in section 18 the Act, are at the absolute discretion of the responsible Minister or his delegate. Deportation requires a specific deportation order and applies to Australian permanent residents only. Removal is an automatic process applying to persons held in immigration detention and does not require any specific order to be made. It covers those persons who do not have a valid visa to be in Australia, whether their valid visa has expired or was cancelled.
Legislative history
The original bill was introduced to the House of Representatives on 1 May 1958 by Alick Downer, the Minister for Immigration in the Menzies Government. In 1966, the Holt Government amended the Act through the Migration Act 1966. The amendments were relatively minor, dealing with decimalisation and identity documents for crew members of foreign vessels. Several sources have incorrectly identified the Migration Act 1966 as the vehicle through which the Holt Government dismantled the White Australia policy. In fact, the government's actions in that area required no modification of the existing legislation, and were accomplished solely through ministerial decree. The Migration Legislation Amendment Act 1989 created a regime of administrative detention of unlawful boat arrivals. Such detention was discretionary. The Migration Reform Act 1992, which came into operation on 1 September 1994, adopted a mandatory detention policy obliging the government to detain all persons entering or being in the country without a valid visa, while their claim to remain in Australia is processed and security and health checks undertaken. Also at the same time the law was changed to permit indefinite detention, from the previous limit of 273 days. Mandatory detention has continued to be part of a campaign by successive Australian governments to stop people without a valid visa entering the country by boat. The policy has been varied since 1992 by the subsequent Howard, Rudd, Gillard, Abbott and Turnbull Governments. The policy is regarded as controversial and has been criticised by a number of organisations. The High Court of Australia in Al-Kateb v Godwin confirmed, by majority, the constitutionality of indefinite mandatory detention of aliens.
2018–2019: "Medevac bill"
The Home Affairs Legislation Amendment Bill 2018, dubbed the Medevac bill, introduced amendments to the Migration Act, in order to give greater weight to medical opinion in allowing the medical evacuation of asylum seekers to Australia from Nauru and Manus Island. After discussion the amended bill passed in the House by 75 votes to 74 and passed in the Senate by 36 votes to 34, as the Home Affairs Legislation Amendment Act 2019. However, the 2018 ruling was overturned in December 2019, after 37 votes to 35 supported the government's move to repeal the law.
In December 2014, after Peter Dutton assumed the position of Minister for Immigration and Border Protection, the Migration Act was amended to impose a character test on visa applicants seeking to enter Australia and foreign non-citizens in Australia. These amendments included the introduction of a new mandatory cancellation provision under section 501. Between the 2013–2014 and 2016–2017 financial years, the number of visa cancellations on character grounds increased by 1,500%. According to statistics released by the Department of Home Affairs, the top ten nationalities that featured in visa cancellations on character grounds in 2017 were New Zealand, the United Kingdom, Vietnam, Sudan, Fiji, Iraq, Tonga, Iran, China, and India. Mandatory detention rules also apply to persons whose visa has been cancelled by the Minister, for example on character grounds, allowing such persons to be detained in immigration detention and deported, some after living in Australia for a long period.
2020: Aborginal Australians cannot be aliens
On 11 February 2020 the High Court of Australia, in a judgment affecting two court cases, first used the tripartite test in Mabo v Queensland to determine Aboriginality of the two plaintiffs. The court then determined that if a person is thus deemed to be an Aboriginal Australian, they cannot be regarded as an alien in Australia, even if they hold foreign citizenship. The two men concerned, Daniel Love and Brendan Thomas, could not thus be deported as aliens under the provisions of the Migration Act 1958, after both had earlier been convicted of criminal offences and served time in prison until 2018. The following day, Christian Porter, Attorney-General of Australia, said the decision created "an entirely new category of people in terms of what the government can and can’t do” a non-citizen non-alien, or "belonger". Porter said that the government would be looking to deport the small group of Aboriginal non-citizens who have committed serious offences in another way.
A 1985 report by the Australian Human Rights Commission found that "two groups whose human rights are most at risk in the administration of the Act are disabled persons and persons who have become Prohibited Non-Citizens". The Commission recommended that withholding of an entry permit only be on health grounds. It said the Act was largely a machinery measure, with an emphasis on processes relating to entry to, and enforced departure from, Australia, which did not contain a statement of principles but works by conferring extensive discretions on the Minister and officers of the Department. The Commission considered the criteria on which the discretions should be exercised should be stated in the legislation.
