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2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
Migration Amendment (Visa Maximum Numbers Determinations) Bill 2013
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator Hanson-Young)
A Bill for an Act to amend the Migration Act 1958, and for related purposes
Outline
The Bill amends the Migration Act 1958 (The Act) to allow legislative instruments
designated under Section 85 (Limit on visas) to be disallowed.
Section 85 of The Act allows the Minister to determine the maximum number of visas that
can be granted in a particular subclass in any specified program year. Visa limit
determinations made under this Part of The Act are not subject to disallowance. This is
because Section 44(2) of the Legislative Instruments Act 2003 specifically states that
legislative instruments (other than regulations) made under Part 1, 2 or 9 of the Migration Act
1958 cannot be disallowed.
The purpose of this Bill is to override the determination made by the government on
December 2nd, via legislative instrument IMMI 13/156, which caps the number of Protection
Visas that can be granted for the 2013-1014 financial year, and to ensure that changes to visas
limits, in particular Protection Visas, are subject to parliamentary scrutiny.
This amendment responds to an urgent public policy crisis which has led to over 30,000
asylum seekers in indefinite detention, in community detention or on bridging visas being
subject a Protection Visa grant freeze. The effective freeze on visas grants will have severe
social and health ramifications on the individuals who are subject to the freeze.
NOTES ON CLAUSES
Clause 1 - Short Title
1. This is a formal provision specifying the short title.
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Clause 2 - Commencement
2. The Bill's provisions are to commence the day after it receives the Royal Assent.
Clause 3 - Schedules
3. This clause provides that an Act that is specified in a Schedule is amended or repealed as
set out in that Schedule, and any other item in a Schedule operates according to its terms.
Schedule 1 - Migration Act 1958
Item 1
4. Item 1 inserts the number (1) before the Minister for formatting clarity.
Item 2
5. Currently, section 44(2) of the Legislative Instruments Act states that legislative
instruments (other than regulations) made under Part 1, 2, or 9 of the Migration Act 1958
cannot be disallowed. Item 2 inserts a new subsection that ensures that legislative
instruments made under Section 85(1) of the Migration Act 1958 can be subject to
disallowance by either House of Parliament. The intent is to ensure that section 85 (Limit
on visas) in Part 2 is subject to disallowance by Parliament.
Item 3
6. Item 3 provides that the amendments made by this Schedule apply to each legislative
instrument made under Section 85 of the Migration Act 1958 made on or after 2
December 2013. The retrospective application of this section is in response to the
Minister for Immigration and Border Protection's determination made on 2 December
2013, legislative instrument IMM 13/156, which caps the number of protection visas to
be allocated this financial year. A visa limit of 1650 was set by the Minister for the 2013-
2014 financial year. This limit has already been reached and therefore no further
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Protection Visas will be granted for this financial year. This will have serious social and
health ramifications on the individuals subject to the freeze.
Item 4
7. This item relates to the determination made by the Minister on 2 December 2013 to cap
Protection Visa grants for the 2013-2014 financial year. This item has the effect of a
successful disallowance of the Minister's determination. This item will not affect actions
made prior to this amendment.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration Amendment (Visa Maximum Numbers Determinations) Bill 2013
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The Bill amends the Migration Act 1958 (The Act) to allow legislative instruments
designated under Section 85 (Limit on visas) to be disallowed.
Section 85 of The Act allows the Minister to determine the maximum number of visas that
can be granted in a particular subclass in any specified program year. Visa limit
determinations made under this Part of The Act are not subject to disallowance. This is
because Section 44(2) of the Legislative Instruments Act 2003 specifically states that
legislative instruments (other than regulations) made under Part 1, 2 or 9 of the Migration Act
1958 cannot be disallowed.
The purpose of this Bill is to override the determination made by the government on
December 2nd, via legislative instrument IMMI 13/156, which caps the number of Protection
Visas that can be granted for the 2013-1014 financial year, and to ensure that changes to visas
limits, in particular Protection Visas, are subject to parliamentary scrutiny.
Human rights implications
This Bill does not engage any of the applicable rights or freedoms, as it simply creates a
mechanism for the Parliament to disallow legislative instruments determined and Section 85
of the Migration Act 1958.
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Conclusion
This Bill is compatible with human rights as it does not raise any human rights issues.
Senator Sarah Hanson-Young
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