ACC2003 Business Law Forecasting Improved
Question:
Discuss the problems the internet has ‘created’ with regard to piracy and improper material (eg child pornography). Your discussion will include intellectual property rights with regard to music and cybersquatting.
What Government regulations, legal actions, technological intervention (such as blocking techniques) and industry self-help have occurred or are occurring or proposed to deal with the problem (such as pay-fordownload)?
Discuss the effectiveness or otherwise of these actions.
Advise the law in Australia including relevant legislation and cases with regard to:
Negotiable instruments generally, and bills of exchange and cheques specifically;
With regard to cheques:
« Why are cheques crossed?
« What does ‘Not Negotiable’ mean and what is its effect?
« Who may have responsibility for a forged cheque honoured by a bank?
Immigration applications generally (for example, the importance of sponsorship, special skills, assets and age)
Family reunion (how readily are these granted now?)
Spousal visas (how long must you be together and what are the safeguards against scam partnerships?)
Student visas (can they convert to permanent residency visas?)
Answer:
Introduction
The main aim of the immigration law is to regulate the policies to help the people who are coming from other countries to seek shelter and residence. Australia has always been a very immigration friendly country and it has always worked on helping in the passage of migrants legally (Chuang 2017). In Australia, one of the first legislations regulating immigration was Immigration Restriction Act 1901 which dealt vastly with the concept of agreements along with the policies that the Government had to devise to ensure that the process of administration of the immigration policies is without any restrictions.
Dictation Test
The Immigration Restriction Act 1901 is considered to be one of the primary and first legislations that was used by the Commonwealth parliament (Beech 2018). It acted as prohibition on the entry of non-Europeans into the Australian jurisdiction and it was done by giving a dictation test. It was a racial test guised in the garb of an education test because it was only given to the Asian immigrants who were resided in Australia in the year 1901. They had the privilege of travelling outside of Australia on the pretext that they will come back to Australia after travelling (Wilson 2017).
Immigration Legislations
Migration Act, 1958 talks about the practices and regulations in Australia and how they should be read along with the concept of Human Rights Commission’s wo
rk. The aim of the Human Rights Commission is to smoothen the process of immigration and therefore ensure that the recommendations and suggestions are for the betterment of the immigrants (Murphy 2017). The migration programme in Australia is for the purpose of advancing the entry and exit of people into Australia and their exit. The laws in Australia do not discriminate on the basis of cast, colour or geology and they are inclusive of every kinds of people (Guttmann et al 2017). There is no basis of people in Australia. The migration laws are made to ensure that the migration is without any discrimination and that there is no bar of ethnic origin. The process of assessing the applications are done in accordance with the Migration Act and Regulations and the categorization is done as per the requirements of the same (Fleras 2017). The visas are divided into various categories depending on the purpose for seeking the visa. The visas which are applied for the purpose of gaining permanent residency are checked rigorously and there are many stages under which the visa application is reviewed. The legislation mirrors the national interests as well as the needs of Australia. There is also a specified number of people who can gain entry into Australia and also that number is set as per the requirements of the Australian Immigration Law . The regulations of Migration Law apply to all the citizens equally and there are no discriminations. The selection is also done on a case to case basis and it has to be ensured that the selection is not opposed to public policy.
In Australia there is also a test of character and health which needs to be passed for a migration application to get processed. As per the provisions of S. 501 of the Migration Act, 1958, anyone who is willing to stay in Australia or just enter Australia has to pass the character test. This test applies to all the non-citizens, the sponsors of visa application and also the members of the non-migrating people who plan to enter Australia. The character test mandates that the people entering into Australian jurisdiction is a law abiding citizen and that they do not have a criminal history. It is imperative for the legislation to ensure that his entry shall not be against the safety of people in Australia. The visa holders have to satisfy the character test and also a health requirement test along with it.
Whenever a person is seeking a residency in Australia, it is necessary that the person has to notify the department that he has been convicted of any crime and that he has a criminal track record. Therefore, the department has the authority to check the history of the people applying for citizenship and the assessment has to be done keeping in mind the character test. The individuals also have to provide police certificates to make the claim. The Minister as well as the Department has the power to cancel an application, if the character test is not met. The discretion lies with the department as well as the Minister to not cancel the visa and give a chance to an individual to make his case. The reasoning provided by the Minister has to be in writing and also all decisions need to be made keeping in mind all the considerations for the case in question. This Ministerial Discretion is known as the Ministerial Direction 65 which is found under section 499 of the Migration Act. This is an important power given to the Ministers where they can take into consideration all the necessary and important considerations and also the best interests of the citizens as well as the non-citizens of Australia.
Migration Agent under the Migration Act is a person who has been assigned to advise the people who are seeking immigration. The migration agent is responsible for helping the migrants to prepare as well as lodge matters related to the application. The Department of Immigration and Citizenship hires the migrating agent and he is representative of the department. The migrating agent works for fee and the agent has to be registered with the Office of the Migration Agents Registration Authority and it is unethical to deal like an agent if he has not been registered. The Migrating Agent has to provide correct and legal advice and the agent cannot act in contravention of his duties. The agent has to keep the interest of the clients ahead of himself and in cases when it is found that he has acted for personal gains, it will be found to be an infringement of the immigration policies and he shall be held liable for unprofessional conduct. The agent can also give out information and advice in a letter of advice which has been mandated by the department and therefore it is necessary that all the advice given is right and there has been no foul play in that regard. The migration agent has various responsibilities and therefore he is liable to help the non-citizens with all matters related to migration. The Department of Home Affairs is in charge of giving assistance and advice and therefore it is essential to ensure that the Migration Agent is aware of all the rights that are owed to him and he abides by them. The agent has to look into the long term as well as short term goals and give advice based on the needs and requirements of the agent. Any client coming for help should be advised on all the grounds and in cases when the agent does not do so, he shall be held to be in violation of his rights.
The treaties and agreements that are binding on Australia are not directly incorporated and there is no process of ratification or accession in that process. For a law to become a part of the domestic law, it is important that the same law is implemented by legislation and those legislations can only be incorporated when there has been a written obligation to that effect. Therefore, it is futile to say that treaties do not have any binding and therefore it is important that they are properly incorporated. In the case of Minister for Immigration and Ethinic Affairs v Teoh, it was held by the Court that treaties shave an indirect effect and therefore the law should be placed to ensure that there is no conflict between the international agreements and the domestic laws. The laws applicable to Australia are common law and therefore the international agreements do not have a direct binding effect and it is necessary to understand. The Migration Act 1958 is considered to be a principle legislation that deals with the rights of the immigrants and also it has to be read along with the principles of the Human Rights Commission Act, 1981 which will have an effect on the Australian citizens. The Australian Courts have the power to look into a claim and check if there has been a violation of the domestic laws of Australia. To achieve consistency and also to avoid conflict, it is important for the courts to check that the 1951 Convention as well as the 1967 protocols are abided by.
Australia has been a state party to the 1951 Convention and also 1967 Protocol but there has been no instrument to that effect and in current legal condition, the primary and the main statute is the Migration Act which deals with and regulates the functioning of the migration department. As per the Governmental policies and also the affairs of the Department, it is necessary to act in accordance with the Parliamentary mandates and also Federal rules. The Convention or the 1967 Protocol helps in understanding the status of the refuges and these agreements and treaties have wide applicability.
As per the immigration status granted by the Migration Act, there are many status for which a visa is granted and it is based on various grounds like age, special skills and sponsorship. As per the Australia Skilled Visa, there is a consideration of age, language, the occupation and the special skill assessments that are necessary for the application. These criteria needs to be met by the people who are applying for a visa. A special skilled visa is a status which grants a special skilled person to get his visa application approved. As per this, a person who possesses a special skill shall be granted a visa.
A family reunion visa is gramnted on various grounds and on meeting different criteria. As per this segment of visa application, a partner who wishes to get his other partner, shall apply for visa and there are other parent category visas too which are applied when a person intends to reunite with his family in Australia. Other visa options are for bringing the family members as well as children who are born to a person who is a permanent resident in Australia. There are visas granted for relatives as well as visas specifically designed to advance career options.
Any student who wants to get a visa to study in Australia has to apply for the same and it shall be done under student visa subclass 500 where the student has to mention the university and also show sufficient proof of admission. These visas are again divided into visiting and studying visa, training visa which are given under subclass 407.
The new immigration policies ensued with the aim of resettlement of the refugees in the Australian jurisdiction (Boeles et al 2014). There were international agreements for the regulation of immigration policies, namely the 1951 Convention Relating to the Status of Refugees and also the 1967 Protocol. The rights that need to accrue in case of a migrant should be similar to that of an Australian citizen and that shall be the aim of the migration laws, to treat people equally and to ensure that the same rights and citizenship are awarded to them (Grant 2018). The Australians also protected the Germans and the Australian Jews who were facing a situation that had them trapped (De Hart 2014). The long standing agreements with other countries also showcase the intention of the migration laws, to protect and preserve the immigrants.
To apply for citizenship, an adult has to show that he has been a lawful resident in Australia and that shall also include a period of 12 months. The person has to be an adult and has to be a resident in Australia for four years immediately before he applies for Australian citizenship.
Scam partnership accrues when both partners enter into a marriage to deceive the law and gain residency in Australia. It is a punishable offence and the law mandates that they be blacklisted from getting visa. For a partner to claim visa, it is mandatory to show that they have been cohabiting for a specified period of time as per the Australian Immigration laws. As per subclass 820 and 801, a partners has to be together for a period of 12 months.
References
Beech, S.E., 2018. Adapting to change in the higher education system: international student mobility as a migration industry. Journal of Ethnic and Migration Studies, 44(4), pp.610-625.
Boeles, P., Den Heijer, M., Lodder, G. and Wouters, K., 2014. European migration law.-. Cambridge [etc.] Intersentia9781780681559.
Chuang, J.A., 2017. Using Global Migration Law to Prevent Human Trafficking. AJIL Unbound, 111, pp.147-152.
Crock, M. and Berg, L.A., 2011. Immigration, refugees and forced migration: law, policy and practice in Australia. Federation Press.
De Hart, B., 2014. Unlikely couples: regulating mixed sex and marriage from the Dutch colonies to European migration law. Wolf Legal Publishers (WLP).
Fleras, A., 2017. Rethinking Citizenship Through Transnational Lenses: Canada, New Zealand, and Australia. In Citizenship in Transnational Perspective(pp. 15-47). Palgrave Macmillan, Cham.
Gilbert, G. and Rüsch, A.M., 2018. International Refugee and Migration Law.
Grant, A.G., 2016. Confronting (In) Security: Forging Legitimate Approaches to Security and Exclusion in Migration Law.
Guttmann, A., Chiu, M., Lebenbaum, M., Lam, K., Chong, N., Azimaee, M., Iron, K. and Manuel, D., 2017. Describing the Linkages of the Citizenship and Immigration Canada Permanent Resident Data and Vital Statistics—Death Registry to Ontario’s Administrative Health Database. International Journal of Population Data Science, 1(1).
Minister for Immigration and Ethinic Affairs v Teoh [1995] HCA 20
Murphy, K., 2017. Puritanical citizenship changes promote less inclusive Australia. Eureka Street, 27(12), p.67.
Wilson, T., 2017. Can international migration forecasting be improved? The case of Australia. Migration Letters, 14(2), p.285.
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