INTRODUCTION

TO MIGRATION
LAW
Faculty of Law

78300 – MODULE 1 REVISION GUIDE

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Contents
Contents 2

Module 1: Overview of Australia’s Migration Law 3

Fundamentals of law 3
Overview of the Australian Federal System 3
Separation of Powers 5
Where is it found? 6
Australian system 6
Independent and separate Judiciary 6
Law made by the Parliament 6
Common law: Judge made law 8
Judge made law 9
The Doctrine of Precedent 10
Terminology 10
Interpreting the Facts 11
Delegated legislation 11
Disallowance 12
Ministerial Directions 12
History of migration law 13
Early Australian migration history 13
The early years 13
Australian Federation 14
The first federal migration law 14
Australian migration policy in the 1900s 16
Current migration legislation 17
Sources of migration law and policy 18
Legal Research 18
How should I start with legal research? 18
Legal Reading and Paraphrasing 18
Paraphrasing: What and why? 18
Legal Problem solving with IRAC 19

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Module 1: Overview of Australia’s
Migration Law
What will I learn in this Module?

The history of Australia's Migration Law

How federal law is made in Australia

The structure of Australian Migration Law in the context of Australia’s legal system

How to research and solve legal questions

What will I be able to do by the end of this module?

Use LEGENDcom to conduct research into migration law and policy

Begin to interpret and apply migration law and policy in professional practice

Fundamentals of law
Overview of the Australian Federal System
The system of government in Australia is summarised below:

Australia

Constitutional monarchy with Governor-general acting as the Monarch's

representative

Separation of powers between legislature, executive and judiciary

Elections every three years or less

Federation of states with equal state representation in the Senate

Bicameral system of representation:

House of Representatives and Senate

The Westminster System

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The Australian system of government is based on the Westminster System which
originated in the United Kingdom. The requirements for a Westminster System are:

• a head of state (the monarch),

• a head of government (the Prime Minister),
• an elected Parliament with one or two houses (House of Representatives and
the Senate),
• a government formed by the political party with the majority of members of
Parliament in the Lower House (House of Representatives),
• a Ministry drawn from members of Parliament (Cabinet), and
• an independent Judiciary (courts and judges).

The Public Service provides apolitical, professional advice to the Government of the
day and implements the Government’s policies and programs. The Department of
Home Affairs is a government department which is staffed by public servants.

The two houses of Parliament are divided into a lower house, the House of
Representatives, and an Upper House, the Senate. Legislation must pass through both
houses before it becomes law. This is known as bicameral representation.

Information about the federal Parliament of Australia is available on the Parliament of

Australia website.

State and Federal Governments

In Australia, there are two levels of government, state and federal. Each state has its
own government which makes laws for the state. There is also the Federal
Government which makes laws which apply across Australia at a federal level. The
Federal Government is also referred to as the Commonwealth Government. Migration
Law is one of the areas of law within the jurisdiction of the Federal Government.

Laws made by a Parliament are called legislation and include Acts and statutory
instruments.

All of the states in Australia, except Queensland, have bicameral representation, which
means there are both upper and lower houses of parliament. Queensland and the
territories have a unicameral system and operate with only one house of parliament.

The Australian system of government is a representative democracy. This means

people are elected to Parliament to represent the people either nationally or on a
state basis, and make laws on their behalf.

A government can only make laws about matters which it has the power to make laws
about. The source of a government’s power is found in the Constitution applicable to
that government.

A Constitution is a document which sets out the powers and rules which apply to a
specific body. Unless the body follows the powers and rules set out in the Constitution,
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its actions will be beyond its jurisdiction and unlawful. The Commonwealth of Australia
Constitution Act 1901 (the Constitution) provides which powers the Commonwealth
can legislate on.

This fact sheet provides a useful overview of the Australian system of government.

The Constitution
The Constitution is the foundational document that established the federation of
colonies that formed the Commonwealth of Australia. It is an important guide for
understanding the powers of the state and federal governments in Australia. Key to
this is the statement of federal powers found in section 51 of the Constitution. The
Federal Government has power to create laws on 'naturalisation and aliens' ( s 51(xix))
and 'immigration and emigration' (s 51(xxvii)).

States are still able to legislate where federal powers exist but to the extent that there
is an inconsistency between state and federal laws, the federal law will prevail where
the federal power to legislate is valid.

The Australian Constitution can only be amended by following the procedure set out in
s 128. The proposed change must be passed by an absolute majority of each House of
Parliament and then submitted to a public vote.

For the public vote to pass the change it must be voted in favour by a majority of the
States and also a majority of the people voting. This is known as a Referendum. If the
Referendum is successful then the change must be made to the Constitution.

There is also a process known as a Plebiscite which is used to decide a national

question that does not affect the Constitution. The result of a Plebiscite is advisory
only and does not have any legal force.

Since 1901, 19 referendums have proposed 44 changes to the Constitution; only eight
changes have been agreed to. Further information about referendums and plebiscites
is available on the Parliamentary Education Office site.

Separation of Powers
The Separation of Powers doctrine aims to prevent the despotic or arbitrary abuse of
power and to ensure that the actions and decisions of one section of government are
scrutinised by another. In its classic formulation, the doctrine of the separation of
powers assumes:

• Three different functions of government – the legislative, the executive and the
judicial;
• Three separate institutions through which these functions are respectively
performed; and

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 • No overlap between the personnel assigned to carry out each function or
between the functions assigned to the different personnel. 1

Where is it found?

The doctrine is not found in any specific piece of legislation; however, it is based on
the structure of the Constitution. The Constitution identifies three powers and three
institutions which have those powers, namely:

• The Parliament (Ch I),

• The Executive Government (Ch II), and
• The Judicature (Ch III).

Australian system

The Australian system differs from the classic formulation set out above because the
government is operated under the Westminster System, which means there is an
overlap between the legislative and the executive functions. However, the Judicature
is separate to the legislative and executive functions of government and operates
independently.

Independent and separate Judiciary

Judges are governed by the judicial system and the laws which apply to it. The courts
role is to interpret the law made by the parliament.

Therefore, the focus of the separation of powers in Australia is on maintaining an

independent and separate judiciary. An important part of this independence is the
method by which judges may be removed from office. Section 72 of the Australian
Constitution sets out Judges’ appointment, tenure and remuneration. A judge may
only be removed from office by the Governor-General, on a motion from both Houses
of Parliament and based on the ground of proved misbehavior or incapacity. Originally
judges were appointed for life but subsequently a maximum age was inserted into the
Constitution. The maximum age for a judge is seventy years.
1 Principles and Practice of Australian Law 3rd ed, Ellis E, Lawbook Co. 2013 at [3.41].

Law made by the Parliament

It is the role of the Parliament to perform the function of the legislature and make
laws. Laws made by the Parliament include Statutes, Regulations and Statutory
Instruments (also called Legislative Instruments).

A bill

A bill is a document which contains a proposed new law or a proposed change

(amendment) to an existing law. A bill can be introduced in to Parliament in a number
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of ways, but most often they are introduced by a Minister who is a member of the
Cabinet. A Member of Parliament may also introduce a bill into parliament and these
are called Private Member Bills.

Passage of a bill

The process of making a bill in to law is referred to as the passage of the bill through
the Lower House (the House of Representatives) and an Upper House (the Senate).
Once a bill becomes law and it is known as an Act.

The first step in the process is called the first reading. The bill is introduced to the
House of Representatives and the title of the bill is read out loud. Copies of the bill are
then distributed to members of Parliament to read.

The second step is called the second reading. The Member of Parliament who
introduced the bill will explain the purpose and reason for the introduction of the bill.
Other members of parliament may ask questions about the bill and suggest
amendments to it. At this stage, the bill is considered in detail and amendments may
be suggested. This is known as the Second Reading Debate.

The next stage is known as consideration in detail where the contents of the bill are
considered clause by clause. This stage is less formal than the Second Reading Debate.

A vote on the bill is then carried out. If the vote is in favour of the bill then the bill will
pass to the next stage. If the vote is not in favour of the bill then the bill will not
proceed. In this case, the bill may be referred to a committee for consideration and/or
amended and reintroduced to parliament. If the bill is about a particular area of law
then it may be referred to a Select Committee or a Joint Committee.

The final stage for passage of a bill is the third reading. In most cases by the time a bill
reaches this stage it will be passed. Debate on the bill at this stage is limited to the
matters contained in the clauses and schedules of the bill. A motion is put forward to
pass the bill and if this is agreed to then the Clerk of the House will read the long title
of the bill out loud. The bill is then passed by the Lower House and is transmitted to
the Senate for consideration.

The bill goes through the same process in the Senate as it did in the House of
Representatives. The bill is then returned to the House of Representatives. The Senate
may return the bill with suggested amendments which the House of Representatives
will need to consider. If the two houses of parliament do not agree about the bill then
it will be laid aside which means it will not be further considered.

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An Act

If the two houses do agree on the bill then it will be considered to have passed both
Houses of parliament. The bill is then presented to the Governor-General (the
representative of the monarch) for assent. Once assent is given the bill has become an
Act of Parliament and part of the law of Australia. This is known as the Royal Assent.

When does an Act commence operation?

An Act does not automatically commence operation at the time it receives the Royal
Assent. It is critical to distinguish between the date of assent and the date of
commencement. It is only after the date of commencement that the Act becomes in
force.

All Acts contain a section which sets out the commencement date of the Act. For
example, s 2 of the Migration Act 1958 provides the following: "The several Parts of
this Act shall come into operation on such dates as are respectively fixed by
Proclamation".

It is important to apply the correct law to your client. If the circumstances of your
client’s case occurred before an Act commenced (or before a relevant provision was in
effect) it will not apply to their situation. One way to determine the commencement
date is to look at the notes or Endnotes for the Act. For migration professionals,
selecting the stack in the LEGENDcom database that covers the relevant time period
will ensure that only the current and applicable law is considered.

Common law: Judge made law

Australia also has a body of judge made law called Common law. As with the
Westminster System, the Common Law of Australia is based on the Common Law of
England.

The common law of Australia was based upon the common law of England. We
inherited it at the time of European settlement. The word “common” was a reference
to the rules that applied to all citizens, the laws all people had in common, as distinct
from special rules and customs that applied to particular classes, such as members of
the clergy, or in particular places. The rules of the common law are judge-made. They
were developed and refined by English, and later, Australian courts, originally at a time
when parliaments were less active in the area of law-making than they are today.1

1 Gleeson CJ, The Rule of Law and the Constitution [Boyer Lecture 2000] (ABC Books, Sydney, 2000) p 6.

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The source of the Common Law is found in the reasons for decisions made by the
courts. This is why the common law is also referred to as case law or judge made law.
Decisions made by judges and their reasoning are based upon long established judicial
methods. We will look next at the Doctrine of Precedent which underpins the
operation of the Common Law. It provides a framework for determining which
decisions of a court must be followed as law.

Judge made law

When a judge makes a decision in a case, the decision is called a judgment. Important
judgments are published in books known as law reports. The principles and rules
contained in the collection of judgments and court procedures are what is known as
the Common Law. When a judgment has been included in a law report it is referred to
as being reported or a reported decision. Decisions which are not included in a law
report are called unreported decisions. Unreported decisions carry less weight (are less
persuasive for a judge to follow) than reported decisions.

The main distinction between laws made by Parliament and judge made law is that a
judge can only decide on issues which come before him or her in court. The Common
Law develops on the basis of disputes which people bring to court and which are
decided by a judge. A judge cannot simply make a law because they are concerned
about a particular issue. This is the role of the elected government.

Most cases which come before the courts are decided on the basis of the facts of the
case and whether they fit within the law. Very few of these decisions will be reported.
The various law reports provide an authorised version of the decision which can then
be followed by other courts. Note that not all law reports are authorised by the courts.
The UTS Library provides links to authorised law reports in the Law Guide Case Law:
Finding Cases. We look at how to locate court cases, and how to analyse court cases in
our next Module.

There are a number of rules that direct the conduct of court cases and court-made law.
Some of these include: A judge’s decision in each case is binding on those involved (the
parties) in that case. If an appeal is not made within the time limits, the matter is
finalised and the case cannot be re-opened. If one of the parties appeals to a higher
court (within the time limit), the higher court can either agree with the lower court’s
decision or make a new decision. The higher court’s decision is then binding on the
parties, unless an appeal is lodged within the time limits to an even higher court.

The decision of the highest court in the court structure is final. No further appeals are
possible.2

2 The Law Handbook 2017 (Vic) under Parliament and judge-made law

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Perhaps the most important rule which must be followed is the doctrine of precedent.

The Doctrine of Precedent

The doctrine of precedent means judges in lower courts must follow decisions of a
higher court, and a single judge must follow a decision made by more than one judge
in that court.

The Federal Circuit and Family Court (FedCFamC) does not have an appellate
jurisdiction in relation to migration decisions. The Federal Court hears appeals from
the FedCFamC. Normally the appeal will be heard by a Full Court of the Federal Court
(FCAFC), constituted by either three or five judges. There are some circumstances
where a single judge of the Federal Court will exercise the court's appellate jurisdiction
and review a decision of the FedCFamC. The FCAFC also hears appeals from decisions
in the Federal Court's original jurisdiction. The FedCFamC must follow decisions of the
Full Court in its appellate jurisdiction, and a Federal Court judge hearing a matter at
first instance is bound by decisions of the FCAFC.

The High Court need not follow its own earlier decisions, or precedents, and can make
new law by deciding (with a majority of judges agreeing) to change the law. The High
Court did this with the landmark Mabo decision of 19921, when the judges decided to
abandon what was then the established law on Aboriginal title to land. For the first
time, the High Court declared the Australian legal system could recognise Indigenous
legal systems that existed before white settlement.

Parliament-made law overrules judge-made law if both apply to the same issue.
However, judges continue to develop the law in areas not covered by legislation, and
have an important role in interpreting legislation when there is a dispute about the
meaning or application of a section of an Act. The decisions that judges make in
interpreting Acts become part of the common law, which other courts will refer to and
follow.

Terminology
We use specific terms like applied, affirmed and distinguished to explain the way that
courts deal with decisions of other judges. It will assist you when you read legal
judgments to familiarise yourself with these terms.

Decisions of a higher court are referred to as binding. This means the decision must be
applied and used to determine the meaning of legislation and its application to the
same facts.

The part of a decision which is binding on other courts is the ratio decidendi (ratio) or
reason for decision. The part of a decision which is not binding, but may be persuasive,
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is called obiter dicta (obiter). The obiter is where the judge may express an opinion on
something which is not essential to the decision. This opinion is not binding.

A decision which has been reported will have a headnote. This is a short summary
which appears before the actual decision. The headnote provides information about
the case and importantly will set out the ratio. The ratio will be set out under the
words “Held”.

Interpreting the Facts

The doctrine provides a level of certainty and consistency in relation to how people are
treated by the courts. It is important to fully understand the reasons which a judge has
provided as to why he or she made the decision they did. If the facts of the client's
case are the same then their case will be decided in the same way.

However the way in which the facts of a case are interpreted also influences the
outcome. This is why, despite the system of precedent, not all cases settle before trial
as some uncertainty can remain.

In some circumstances, a lawyer may be able to argue that the facts of their case are
different in some way to the facts in the binding decision. If the judge accepts this
argument then he or she is not bound to follow the decision but may distinguish it and
apply different reasoning.

Delegated legislation
The Migration Act 1958 gives the responsible Minister the power to make law on
specific topics. This type of law is referred to as Delegated or Subordinate Legislation
or and becomes valid law without needing to pass through the same Parliamentary
process a Bill undergoes.

Delegated legislation is issued when legislation needs to change quickly. For example,
the Medium and Long-term Strategic Skills List (MLTSSL) updates the list of eligible
skilled occupations for the Employer Nomination Scheme (ENS) visa (subclass 186).

In relation to other Acts of Parliament this kind of law might be called Orders or By-
Laws. The kinds of delegated legislation made under the Migration Act are referred to
as Regulations, Directions and Legislative Instruments.

Regulation 2.07 (5)

If an item of Schedule 1 prescribes criteria or requirements by reference to a legislative

instrument made under this subregulation, the Minister may, by legislative instrument,
specify any of the following matters for the purposes of such a criterion or requirement:

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 a. an approved form for making an application for a visa of a specified class;
b. the way in which an application for a visa of a specified class must be made;
c. the place at which an application for a visa of a specified class must be made;
d. any other matter.

Delegated legislation comes into force as soon as it is registered on the Federal

Register of Legislative Instruments. The Legislation Act 2003 (Cth) requires the
delegated legislation to be laid before the Houses of Parliament within six sitting days
of registration.

Disallowance

Either House of Parliament may disallow the delegated legislation. To do this, a

member of either House must move a notice of a motion to disallow the instrument
(or parts of it) within 15 ‘sitting days’ of the Regulation being laid before the House.
Once this notice of motion is given, the motion must be brought for debate and a vote
within a further 15 sitting days. If the motion to disallow is passed, the delegated
legislation ceases to operate from that time. If the motion is not passed then the
delegated legislation continues to operate. If the motion is not brought to a vote or
withdrawn by the end of this period, the motion is deemed to have passed and the
delegated legislation ceases to operate from that time.
Disallowed delegated legislation is valid for the period between registration and the
time they are disallowed. See, for example, Parts 114, 116 and 835 of Schedule 2 of
the Migration Regulations 1994. These Parts were omitted on 2 June 2014 by
Subordinate Legislative Instrument 65 of 2014 but the Legislative Instrument was
disallowed. This meant that these visa subclasses were not available to new applicants
between 2 June 2014 and 12pm on 25 September 2014.
Since 2015 instruments made under Part 2 and Schedule 1 to the Migration
Regulations 1994 are exempt from disallowance under section 42 of the Legislation
Act. This is because they are prescribed as exempt by section 10 of the Legislation
(Exemptions and Other Matters) Regulation 2015.
LEGENDcom provides two lists of non-registered instruments, which are also called
non-legislative instruments. These instruments relate mainly to the department’s
administrative functions. These instruments are not registered on the Federal Register
of Legislation and cannot be disallowed by Parliament.

Ministerial Directions

An Act may provide specifically that a Minister can issue ‘Directions’ about a particular
topic in that Act without going through the same Parliamentary process a Bill
undergoes. These Directions are known as Ministerial Directions and s 499 of the
Migration Act 1958 contains this power.

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Section 499

1. The Minister may give written directions to a person or body having functions or
powers under this Act if the directions are about:
a. the performance of those functions; or
b. the exercise of those powers.

1. (A) For example, a direction under subsection (1) could require a person or body
to exercise the power under section 501 instead of the power under section 200
(as it applies because of section 201) in circumstances where both powers
apply.

2. Subsection (1) does not empower the Minister to give directions that would be
inconsistent with this Act or the regulations.

2. (A) A person or body must comply with a direction under subsection (1).

3. The Minister shall cause a copy of any direction given under subsection (1) to be
laid before each House of the Parliament within 15 sitting days of that House
after that direction was given.

Ministerial Directions under s 499 are not declared to be legislative instruments by s 6

of the Legislative Instruments Act 2003 because they are not described as a ‘legislative
instrument’ in s 499.

Ministerial Directions are similar to policy in that they must only provide instructions
to someone empowered under legislation to exercise those powers, but they have the
force of law in that a person with delegated authority under the Act must follow the
Direction (unless it is inconsistent with any law in the Act itself).

History of migration law

Early Australian migration history

The early years

Australia’s first migrants were its aboriginal people, who were able to travel overland
from Africa to Australia when the huge landmass was still a single continent. A genetic
study reports that all living Aboriginal Australians descend from a single founding
population that arrived about 50,000 years ago. 1

In 1788, 18 years after James Cook sailed into Botany Bay and claimed New South
Wales for Britain, the first convict ship arrived. Over the next 80 years, about 160,000
convicts were transported to Britain’s new Penal Colony. By 1820 the British
Government was making land grants to encourage free settlers to migrate to Australia.

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The first assisted migration commenced in 1832, when single women were actively
recruited to travel to Australia.2

The discovery of gold in 1851 led to a large increase in migrants. The vast majority
were British, but there were also Chinese and European arrivals. From the 1860s
indentured labourers from the Pacific Islands were also brought to Australia to work.

Australian Federation

Until Australia became a Federation in 1901, the Australian States each enacted their
own immigration laws. Upon Federation, the Australian Constitution gave the new
Federal Government power to create laws on 'naturalisation and aliens' and
'immigration and emigration'. 3 Although the States retain power to make laws in
relation to these aspects (provided they are not inconsistent with Commonwealth
legislation), there is no relevant State legislation. Naturalisation is the process by
which a non-citizen (or alien) becomes a citizen of a country. In Australia today, this
process is governed by the Citizenship Act 2007. Emigration is the process of leaving a
person’s own country to permanently reside in another country. In this program we
focus on the immigration power, which governs the entry of non-citizens and their
presence in Australia, including the ways non-citizens can become permanent
residents of Australia. The primary piece of legislation governing these processes today
is the Migration Act 1958.

Section 4(1) of the Migration Act 1958 provides:

"The object of this Act is to regulate, in the national interest, the coming into, and
presence in, Australia of non-citizens."
1.
Aboriginal mitogenomes reveal 50,000 years of regionalism in Australia, Nature International Journal
of Science, volume 544, pp 180-184 (13 April 2017)
2.
A History of the Department of Immigration (2017), p. 14
3.
Sections 51 (xix) and (xxvii) of the Commonwealth of Australia Constitution Act 1901

The first federal migration law

Following the federation of Australia in 1901, several pieces of national legislation
were passed which had a significant impact on who could migrate to and settle in
Australia.

The Immigration Restriction Act 1901

The Immigration Restriction Act 1901 (IRA) was one of the first pieces of legislation
passed by the new Federal Parliament. The purpose of the Act was 'to place certain
restrictions on immigration and to provide for the removal from the Commonwealth of
prohibited immigrants'.

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Section 3 of the IRA set out those who were prohibited immigrants. The list included
those the Minister considered to be likely to become a charge upon the public or upon
any public or charitable institution, persons who were ‘idiot or insane’ or suffering
from an infectious or contagious disease 'of a loathsome or dangerous character'. This
section of the IRA also prohibited criminals, prostitutes, and ‘persons under a contract
or agreement to perform manual labour within the Commonwealth’ (with some
exceptions, such as English soldiers and sailors, and persons appointed to hold
Government office).

Notably, s 3(m) of the IRA allowed the wives and children of non-prohibited entrants
to enter Australia. Section 3(a) of the IRA contained the infamous ‘dictation test’
prohibiting immigration by “any person who when asked to do so by an officer fails to
write out at dictation and sign in the presence of the officer a passage of fifty words in
length in a European language directed by the officer”.

This dictation test was used to exclude undesirable applicants, particularly Asians and
Pacific Islanders, being conducted in a language the applicant was not familiar with,
and was the beginning of the ‘White Australia Policy’.

Watch the video below for an example of the dictation test. Do you think you could do
better in the test than the presenter?

In The King v Wilson & Ors, Ex parte Kisch (1934) 52 CLR 234, the dictation test was
administered to Egon Kisch, a Czechoslovak journalist and communist, in Scottish
Gaelic. The High Court held that Scottish Gaelic was not a European language as
defined in the Immigration Act 1901.

Federal legislation was passed in 1901 to stop Pacific Islanders entering Australia. The
Pacific Island Labourers Act 1901 also empowered the new Federal government to
deport thousands of Pacific Islanders over the next decade.

"3. No Pacific Island labourer shall enter Australia on or after the thirty-first day of
March, One thousand nine hundred and four.

7. No agreement shall be made or remain in force after the thirty-first day of

December, One thousand nine hundred and six.

8.—(1.) An officer authorized in that behalf may bring before a court of summary
jurisdiction a Pacific Island labourer found in Australia before the thirty-first day of
December, One thousand nine hundred and six, whom he reasonably supposes not to
be employed under an agreement; and the court, if satisfied that he is not and has not
during the preceding month been so employed, shall order to be deported from
Australia, and he shall be deported accordingly."

- The Pacific Island Labourers Act 1901

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 Section 5 of the Naturalisation Act 1903 allowed some non-British residents of
Australia who intended to settle in Australia and who had resided in Australia for the
two years immediately preceding their application to be granted Certificates of
Naturalisation. Once naturalised they became British subjects. This legislation was an
integral part of the White Australia Policy, as it excluded aboriginal natives of Asia,
Africa, or the Islands of the Pacific (excepting New Zealand) from eligibility.

"5. A person resident in the Commonwealth, not being a British subject, and not being
an aboriginal native of Asia, Africa, or the Islands of the Pacific, excepting New
Zealand, who intends to settle in the Commonwealth, and who—

(a) has resided in Australia continuously for two years immediately preceding the
application; or

(b) has obtained in the United Kingdom a certificate of naturalization,

may apply to the Governer-General for a certificate of naturalization."

- The Naturalization Act 1903

Australian migration policy in the 1900s

Between Federation and World War 1, some 390,000 settlers from Britain and New
Zealand migrated to Australia. This influx ceased during the War. After WW I,
immigration boomed until the Great Depression began in 1929.

Greek and Maltese citizens were prohibited from entering Australia until 1920,
nationals from Germany, Austria, Hungary and Bulgaria, countries that had fought
against British Empire forces were prevented from migrating to Australia until 1926,
and Turkish nationals were prohibited until 1930.1

Australia officially resettled its first refugees in 1939 when the government agreed to
resettle 15,000 Jewish refugees.

During World War II immigration to Australia again virtually ceased. After the War
there was a push to increase the population, and immigration was seen as a means to
address critical labour shortages. In the 1950s and 1960s there were a number of
assisted immigration schemes in place bringing immigrants from Italy, the Netherlands,
Austria, Belgium, Greece, Spain, West Germany, Denmark, Finland, Norway, Sweden,
Switzerland and the United States.2

Italian migrants arriving at Sydney, 1951. Image from the National Archives of
Australia.

British immigration was strongly encouraged with assisted passage schemes. The ‘Ten
Pound Pom’ scheme launched in 1945 enabled British migrants from any British colony

16
to come to Australia for the price of £10, provided they were under 45 years of age
and in good health.3 Children travelled free of charge.

The Nationality and Citizenship Act 1948 was the first to create Australian citizenship,
with provisions relating to acquiring citizenship by birth or decent, by registration or by
naturalisation. Section 7 provided that Australian citizens remained British subjects.
The Nationality and Citizenship Act 1955 simplified the naturalisation process. (Today,
naturalisation is obtained through citizenship by conferral and is governed by the
Australian Citizenship Act 2007.)

The dictation test was repealed by the Migration Act 1958 and the White Australia
Policy officially ended in 1966 when the then Minister for Immigration, Hubert
Opperman, announced that suitably qualified non-European migrants were welcome
in Australia. A non-discriminatory immigration program was introduced, that
considered applicants on the basis of merit and skills. A Humanitarian Program was
established in the late 1970's.
1 DIMA (2001) Immigration: Federation to century’s end,1901–2000
1 A History of The Department of Immigration (2017), pg 35
1
DIMA (Department of Immigration and Multicultural Affairs) (2006) Immigration – the waves that shaped
Australia, 1945–2006

Current migration legislation

The Migration Act 1958 came into effect on 8 October 1958 and remains in effect
today, although it has been amended significantly since it first became law.
This Act introduced entry permits to regulate entry to Australia. Temporary entry
permits could be cancelled at the absolute discretion of the Minister.
The Act and accompanying regulations as originally enacted provided minimal
guidance to decision-makers, who were instead guided by departmental policy, which
meant that there was little transparency or accountability in the discretionary
decision-making process. This changed in 1989 when the Act was completely
rewritten, and the Migration Regulations 1989 formally incorporated some of that
policy into legislation. At the same time Procedure Advice Manuals (PAM) were
introduced to guide decision makers in interpreting the legislation. For many years
Migration Series Instructions were used to guide decision makers until those
instructions could be included in the PAM. Today the policy is referred to as Policy
Instructions.
Major amendments were made to the Act by the Migration Reform Act 1992 (MRA).
Entry permits were replaced by visas. More departmental policy was incorporated into
to the law. Among other significant amendments, the MRA introduced the Code of
Procedure for Dealing Fairly, Efficiently and Quickly with Visa Applications, which
meant that visa applicants, for the first time, had certainly about how their
applications would be processed. Today this Code is contained in Subdivision AB of
Division 3 of Part 2 of the Act.

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The Migration Regulations 1993 introduced a significant change to decision-making on
visa applications in that they set out specific criteria for most visas, and the time when
the eligibility criteria for those visas had to be met. Further refinements were made in
the Migration Regulations 1994 which are in effect today. The criteria for most visa
subclasses can be found in the Schedules to these regulations.

Sources of migration law and policy

Migration law can come from the legislative, executive and judicial arms of
government. Policy Instructions are created by the Executive to guide officers
administering legislation. If you are looking for guidance on how to locate specific
policy, see the resource 'How to Locate Policy ' on the MLP Home Site.

Legal Research
Being able to conduct legal research is essential to solving legal problems. This includes
being able to locate and evaluate sources of legal information in order to apply the law
to scenarios.

How should I start with legal research?

The first step is to identify precisely the issues or question to be answered. It is

important to be very clear on what problem needs to be solved in order to find the
correct information to use to solve it.

In order to support arguments or clarify points it is necessary first to find the relevant
legislation and any cases which deal with it. These are referred to as primary sources
and are the most authoritative.

For more general legal questions it can be useful to consult a commentary book or
online service. This will give an explanation of the law and provide some legislation and
cases which deal with the issue. For migration related questions a very important
source of information is the Department of Home Affairs’ Policy Instructions. In most
cases these Policy Instructions set out instructions to decision-making staff on how to
interpret the law. Like commentary, text books and legal encyclopedias, the Policy
Instructions are normally a secondary source of information.

Legal Reading and Paraphrasing

Paraphrasing: What and why?

A paraphrase is

• your own rendition of essential information and ideas expressed by someone

else, presented in a new form
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 • one legitimate way (when accompanied by accurate citation) to borrow from a
source
• a more detailed restatement than a summary, which focuses concisely on a
single main idea.

Paraphrasing is a valuable skill because:

• it is better than quoting information from an undistinguished passage

• it helps you control the temptation to cut and paste migration legislation and
policy
• successful paraphrasing helps you to grasp the full meaning of the original
• you need to explain concepts in your own words to demonstrate that you
understand them.

Legal Problem solving with IRAC

One useful way to look at legal problems is the IRAC method. This step by step
approach focuses on how the legal principles involved apply to the facts.

We often assess situations and arrive at conclusions. Yet we might not consciously
understand the process by which we reached our answer. IRAC helps us substantiate
the conclusions we reach.

I = identify the issue

R = identify the legal rules

A = apply the rules to the facts

C = reach a conclusion

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