Migration (IMMI 18/084: Specification of ETA-Eligible Passports) Instrument 2018

ETA (Electronic Travel Authority). The ETA is an electronically stored authority to travel to Australia and apply for entry. It is not a visa label or document. The ETA replaces the need for a paper visitor visa for short-term tourism or business visitor activities. It is granted under the Migration Act and Regulations and is subclass 601. The instrument does not define ETA beyond noting it in the definitions section but the definition is already settled in the Migration Regulations and the Act.

ETA-eligible passport. This is a passport that satisfies both the listing in Column 1 of Schedule 1 and the condition in Column 2. The concept is binary: a passport either qualifies or it does not. The instrument does not give discretion to vary the conditions or to admit other passports. It is a complete code for the purposes of regulation 1.11B(1). The regulations use the concept to trigger the ability to apply for an ETA rather than a visitor visa application. Without this specification no passport would be ETA-eligible.

Conditions. The most common condition is that the passport must indicate that the applicant is a national of the listed state. That means the passport itself must show nationality. A passport that does not contain a nationality field or that shows another nationality would not meet the condition. For example a passport issued by the United Kingdom that shows “British Overseas Territories Citizen” would not satisfy the condition because the required nationality is “British Citizen” or “British National (Overseas)”. The condition does not ask the Minister to verify nationality independently; it relies on the passport entry. For Hong Kong and Vatican City there is no condition at all, meaning any passport issued by those authorities is automatically eligible regardless of what it says about nationality. The instrument does not explain why these two have no condition. For Taiwan the condition is a triple negative: the passport must not purport to be an official passport, a diplomatic passport, or a compatriot document. That leaves only ordinary Taiwanese passports as eligible.

Regulation 1.11B(1). This is the enabling provision in the Migration Regulations 1994. It gives the Minister power to specify, by legislative instrument, passports that are ETA-eligible. The instrument is therefore the exercise of a delegated legislative power. It does not amend the regulation itself; it fills in the term “ETA-eligible passport” for the whole regulatory scheme. The instrument is not subject to disallowance by Parliament unless the enabling regulation provides otherwise but as a legislative instrument it is published and can be commented on. The practical effect is that the Minister can change the list at any time by making a new instrument, which is what happened with the 2022 amendment.

Individual travellers. Nationals of every listed country or territory are directly affected. They gain the ability to apply for an ETA online rather than a paper visa. That saves time, reduces paperwork, and lowers the application fee (the ETA service charge is typically lower than a visitor visa application charge). Travellers from non-listed countries are excluded from the ETA pathway. For example a holder of an Indian passport cannot use the ETA regardless of Indian nationality. The instrument therefore creates a two-tier visa pathway for short-term visitors. The effect on individual choice is clear: eligible travellers face lower transaction costs; ineligible travellers face higher costs and longer processing times. This may affect travel decisions particularly for price-sensitive tourists or business visitors.

Employers and sponsors. Businesses that bring in short-term visitors from listed countries can use the ETA for employees, saving administrative overhead. For businesses in the tourism and hospitality sectors the instrument indirectly increases the pool of low-hassle visitors from developed economies. For businesses in countries not listed the instrument creates a competitive disadvantage because their visitors must go through a more cumbersome process.

Migration agents and travel intermediaries. Agents who assist clients with Australian visas must verify passport eligibility. The instrument is straightforward and stable, but changes to the list (such as the 2022 amendment) require agents to check the current version. The instrument does not impose licensing or reporting duties on intermediaries; it simply defines a factual criterion.

Government agencies. The Department of Home Affairs uses the list to program the online ETA application system. The conditions are hardcoded into the eligibility screening. The instrument reduces the Department’s per-application assessment cost because many criteria are checked automatically. Conversely the instrument imposes the cost of maintaining the list and updating it when countries are added or removed.

Airlines and carriers. Airline check-in staff rely on the instrument to confirm that a passenger has an ETA-eligible passport before boarding. Carriers face penalties under the Migration Act for bringing passengers without valid visas. The instrument makes this pre-boarding check simpler for eligible passports, but errors in applying the conditions (e.g., misreading a Taiwanese passport type) could expose the carrier to liability.

Right to apply for an ETA. A holder of a passport listed in Schedule 1 where the relevant condition is satisfied has the right to lodge an application for an ETA. The instrument does not guarantee grant; it only ensures that the application can be made through the electronic system. The grant decision remains with the Minister subject to visa criteria in the Regulations.

Duty to ensure passport condition is met. The applicant bears the risk that their passport meets the condition. For example a UK passport holder who holds a British Overseas Territories Citizen passport cannot rely on the instrument to apply for an ETA even if the passport is issued by the UK. There is no duty on the Department to inform the applicant that their passport fails the condition; the system would simply reject the application. Similarly a Taiwanese passport holder who applies with an official passport would have their application refused. The instrument does not give the applicant any right to correct the type of passport.

Duty of the Minister. The Minister has the power to specify ETA-eligible passports by legislative instrument. Once the instrument is in force the Minister must accept applications from holders of those passports as valid ETA applications, subject to other criteria. The Minister cannot add ad hoc conditions beyond those in the instrument because the instrument is exhaustive for the definition of ETA-eligible passport. However the Minister can at any time make a new instrument (either amending or replacing this one) to change the list. The 2022 amendment shows this power was used.

No private right of action. The instrument confers no private right to sue if a passport is incorrectly omitted or if an application is wrongly refused on passport eligibility grounds. Judicial review of a visa decision would be under the Administrative Decisions (Judicial Review) Act 1977 or the High Court’s constitutional jurisdiction, but the instrument itself would only be attacked on the ground that the condition was misinterpreted or that the instrument was invalid. The instrument is a legislative instrument subject to Parliamentary scrutiny but not to court challenge for policy choices.

Carrier duties. While the instrument does not impose duties directly on carriers, it interacts with the Migration Act’s carrier liability provisions. Carriers must not bring a person to Australia without a valid visa. By specifying which passports are ETA-eligible the instrument gives carriers a clear list to rely on when checking travel documents. But the carrier must also check that the person actually holds an approved ETA, not just an eligible passport.

The instrument itself contains no penalty provisions. It does not create offences or pecuniary penalties. Enforcement occurs through other provisions of the Migration Act and Regulations. The most relevant enforcements are:

Visa fraud. If an applicant uses a passport that does not meet the condition to apply for an ETA, the applicant may be refused a visa or have a visa cancelled. Making a false declaration in the ETA application can attract penalties under section 234 of the Migration Act (false or misleading statements), which carries imprisonment of up to 10 years. The instrument is the baseline standard: using a passport that is not ETA-eligible to obtain an ETA would be a false statement because the applicant asserts eligibility.

Carrier liability. Airlines and other carriers that bring a passenger to Australia without a valid visa face penalties under section 229 of the Migration Act. The instrument helps carriers avoid this by clearly identifying which passports are eligible. If a carrier boards a passenger holding a non-eligible passport but who claims an ETA, the carrier could be penalised if the passenger is found not to have a valid visa. The carrier’s duty is to verify the visa status, not just the passport eligibility.

Administrative cancellation. The Minister can cancel an ETA if the holder does not meet the criteria at the time of grant. If it emerges that the passport condition was not met, the ETA can be cancelled. This cancellation is not a penalty but an administrative correction.

Amendment history enforcement. The table of amendments shows that section 2 (commencement) and Schedule 2 were repealed by the Legislation Act 2003. This is a routine effect: section 2 becomes spent after commencement, and Schedule 2 (which originally contained amendments to other instruments) may have been superseded. The repeal does not affect the substantive operation of the instrument. There is no enforcement action associated with these repeals.

No criminal liability for breach of instrument. The instrument does not create any duty to comply that would itself ground a prosecution. Its breach is only relevant through the visa application process. Accordingly the compliance burden is low for the instrument itself, but the penalty for misusing it can be severe for individuals who deliberately circumvent the passport conditions.

Migration Act 1958. The Act governs visa classes, including the Electronic Travel Authority (subclass 601). Section 29 of the Act requires a valid visa for non-citizens to travel to Australia. The ETA is one such visa. The instrument is made under the Regulations, which are made under the Act. The Act does not directly address ETA-eligible passports; that is delegated to the Regulations.

Migration Regulations 1994. Regulation 1.11B is the immediate source of power for the instrument. The regulation defines “ETA-eligible passport” by reference to a specification under subregulation (1). The instrument completes that definition. Other regulations that refer to ETA-eligible passports include those dealing with the criteria for grant of an ETA (e.g., Schedule 1, item 1213A). The interaction is that the instrument sets the passport eligibility, and the Regulations set the substantive visa criteria.

Electronic Transactions Act 1999. Not directly referenced, but the ETA system relies on electronic communications. The validity of online applications is supported by the Electronic Transactions Act. The instrument does not affect that interaction.

Legislation Act 2003. The instrument is a legislative instrument subject to registration, tabling, and sunsetting under the Legislation Act. The table of amendments shows automatic repeals of spent provisions under sections 48C and 48D of that Act. The instrument itself does not sunset: it is ongoing and will remain in force until replaced or omitted by a new instrument. The 2022 amendment shows how the instrument interacts with the amending process under the Legislation Act.

Other specification instruments. The instrument likely repeals or supersedes prior specifications. The user text shows that Schedule 2 (which contained amendments to other instruments) was repealed. That suggests that the original 2018 version may have amended other instruments, but those amendments are no longer current. The current instrument is the sole specification for ETA-eligible passports.

International agreements. The list of countries reflects reciprocal visa arrangements and security assessments. Australia has bilateral arrangements with many of the listed countries (e.g., the Visa Waiver Program, though the ETA is not a true visa waiver but a streamlined application). The instrument indirectly implements those arrangements. However the instrument does not refer to any treaty or agreement.

The instrument was originally registered as IMMI 18/084 on 13 August 2018 and commenced on 14 August 2018. The original version was made under regulation 1.11B(1) and contained sections 1 to 7, definitions, and Schedules 1 and 2. The original Schedule 1 listed the ETA-eligible passports. The original Schedule 2 contained amendments to other instruments.

On 19 February 2022, the Migration (Specification of ETA-Eligible Passports) Amendment Instrument (LIN 22/040) was registered and commenced on 20 February 2022. This amendment did not replace the entire instrument but amended Schedule 1. The specific changes are not detailed in the source, but the table of amendments states that Schedule 1 was amended. The user text shows the current Schedule 1 with 33 entries. The 2022 amendment may have added or removed entries or changed conditions. The table of instruments confirms LIN 22/040 amended the original.

Separately, section 2 of the original instrument was repealed by the Legislation Act 2003, section 48D. Section 48D automatically repeals commencement provisions of legislative instruments after five years from registration (unless they have been repealed earlier). Since the original commenced on 14 August 2018, section 2 became spent after 13 August 2023 or thereabouts, and the automatic repeal took effect. This is a technical repeal with no effect on the substance.

Schedule 2 of the original instrument was repealed by the Legislation Act 2003, section 48C. Section 48C provides for automatic repeal of amending provisions after they have operated to amend the target instruments. The original Schedule 2 presumably amended other instruments, and after those amendments were made, Schedule 2 became spent and was automatically repealed. Again, no substantive effect.

There have been no other amendments. The instrument as compiled in the user text reflects these changes. The effective date for the current version is 20 February 2022 (the date of the amendment). Any future changes would require a new amending instrument.

The instrument itself has not given rise to reported litigation. It is a pure list, not a decision or rule that invites challenge. However, its application in individual visa cases could generate judicial review. For example, if a passport holder whose passport is listed but who fails the condition (e.g., a UK passport showing British Overseas Citizen) is denied an ETA, the applicant could seek review of the refusal under the Administrative Decisions (Judicial Review) Act or the High Court’s constitutional jurisdiction. But those challenges would focus on the decision, not on the validity of the instrument.

A potential ground of challenge is that the instrument is ultra vires the regulation if the regulation only permits specification by reference to passport type rather than nationality condition. The instrument uses both nationality and passport type conditions. However, the regulation likely gives wide power, and the instrument has not been successfully challenged.

Another hypothetical challenge is that the conditions are discriminatory or inconsistent with the Migration Act. For example, the Taiwan condition excludes official and diplomatic passport holders. An official passport holder might argue that the condition imposes an additional burden not authorised by the regulation. But the regulation does not restrict the Minister’s specification power, and the instrument is likely valid.

The table of amendments shows that spent provisions were automatically repealed, but no litigation arose from those repeals.

Practitioners should be aware that the instrument is unlikely to be litigated directly. The relevant litigation risk lies in the application of the conditions to individual cases. For example, if the Department misinterprets the condition for Hong Kong (nil condition), or if it rejects a Taiwanese passport that is not an official passport, an applicant could seek review. But that would be an error of law in applying the instrument, not a challenge to the instrument itself.

The UK condition is narrow. The UK entry requires the passport to indicate that the applicant’s nationality is either “British Citizen” or “British National (Overseas)”. A UK passport showing “British Overseas Territories Citizen” or “British Protected Person” does not qualify. This is a common trap: many practitioners assume all UK passports are ETA-eligible. The condition specifically excludes British subject categories other than the two named. Similarly, a passport from the Crown Dependencies (Jersey, Guernsey, Isle of Man) may indicate a different nationality status. Practitioners must check the actual nationality entry on the passport.

Taiwan passport type matters. The condition for Taiwan excludes any passport that “purports to be an official passport, a diplomatic passport, or a Taiwanese ‘compatriot’ document.” For nationals of Taiwan who hold an ordinary passport, the condition is met. But if the passport says “official” or “diplomatic” on the cover or inside, it is ineligible. The definition of “purports” is not defined in the instrument; it likely means the passport bears words or symbols suggesting it is not a regular passport. This creates interpretive risk. A passport that says “Taiwan (Republic of China) Official Passport” on the cover would be excluded. A passport that is simply a regular passport with no such designation is eligible.

Hong Kong and Vatican City have no conditions. This means any passport issued by the Hong Kong Special Administrative Region (including those indicating permanent resident status) qualifies, regardless of nationality. Similarly, any passport issued by the Vatican City (including diplomatic or service passports) qualifies. The instrument does not require nationality for these two. This is an anomaly: all other entries require the passport to indicate nationality of the issuing state. For Hong Kong and Vatican, the condition is nil, so the passport itself is sufficient regardless of what it says about nationality.

The instrument does not cover all ETA-eligible persons. Some individuals may be eligible for an ETA on other grounds, such as holding a Permanent Resident visa of a third country or being in a special class. The instrument only covers the passport condition. The ETA criteria also include character and health requirements, which are not affected by this instrument.

The instrument applies only to visa applications made on or after 14 August 2018. Applications made before that date are governed by the previous specification instrument. Practitioners should check the date of application if dealing with older matters.

The list is subject to change without legislative oversight. The Minister can make a new instrument at any time. The 2022 amendment changed the list. There is no requirement for consultation. This creates uncertainty for long-term planning: a country could be removed from the list quickly.

No grandfathering for passport types withdrawn. If the Minister removes a passport type from the list, holders of that passport who had not yet applied would lose eligibility. Existing grants would not be affected (the grant would have been valid at the time), but future applications would be blocked. There is no transitional provision in the instrument for such a scenario.

For individual applicants. Confirm that you hold a valid passport from a country listed in Schedule 1. Carefully read the condition in Column 2. If the condition says “passport must indicate that the applicant is a national of [country]”, check the nationality field on your passport. If you hold a UK passport, ensure it states “British Citizen” or “British National (Overseas)”. If you hold a Taiwanese passport, ensure it is not an official, diplomatic, or compatriot document. If you hold a Hong Kong or Vatican passport, no condition applies. Then apply for an ETA online through the official Department of Home Affairs website or through the ETA app. Provide accurate passport details. If your passport does not meet the condition, you cannot use the ETA pathway and must apply for a different visa (e.g., Visitor visa subclass 600).

For migration agents and lawyers. When advising clients on ETA eligibility, always check the current version of the instrument (Federal Register of Legislation). The instrument may have been amended after 2022. Verify the passport type and the nationality entry. Advise clients that the ETA application is electronic and that false information may lead to visa cancellation or penalties. Keep records of the passport page used for the application.

For travel agents and airlines. When issuing tickets or checking in passengers, confirm that the passenger holds an eligible passport and has an approved ETA. Do not rely solely on the passport being from a listed country; also check the condition. For example, a UK passport holder who is a British Overseas citizen cannot travel on an ETA even if they have an ETA application pending (it would be refused). The carrier should refuse boarding unless the passenger obtains a visitor visa. Ensure staff are trained on the specific conditions for Taiwan and the UK.

For employers hosting short-term visitors. Verify that the visitor’s passport meets the condition. If the visitor’s passport is from a listed country but the nationality field is ambiguous, request a different passport or advise the visitor to use a paper visa. The ETA process is fast, but incorrect assumptions can lead to last-minute travel disruptions.

For the Department of Home Affairs. Maintain the instrument. Ensure that the online application system correctly implements the conditions for each passport type. The system should reject applications where the passport does not meet the condition, with clear error messages. The Department should also publish guidance on what constitutes an official or diplomatic passport for Taiwan purposes, to avoid inconsistency in processing. The Department should monitor the instrument’s application and amend it as needed (e.g., when new countries join reciprocal arrangements).