Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2013 - 2014
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
MIGRATION AND MARITIME POWERS LEGISLATION AMENDMENT
(RESOLVING THE ASYLUM LEGACY CASELOAD) BILL 2014
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments and New Clauses to be Moved on Behalf of the Government
(Circulated by authority of the Minister for Immigration and Border Protection,
the Hon. Scott Morrison MP)
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Amendments to the Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
OUTLINE
The Migration and Maritime Powers Legislation Amendment (Resolving the Legacy Caseload)
Bill 2014 (the Bill) amends the Migration Act 1958 (the Migration Act), the Maritime Powers
Act 2013 and other relevant legislation to support the Government,,s key strategies for
combatting people smuggling and managing asylum seekers both onshore and offshore. The
measures in this Bill are a continuation of the Governments protection reform agenda and make
it clear that there will not be permanent protection for those who travel to Australia illegally. The
measures will support a robust protection status determination process and enable a tailored
approach to better prioritise and assess claims and support the removal of unsuccessful asylum
seekers.
Government amendments are proposed in relation to Schedule 7 to the Bill. The amendments in
Schedule 7 to the Bill enable the Minister to place a cap on the number of protection visas
granted in a programme year. The government amendments will clarify that the Ministerial
power to determine the maximum number of visas that may be granted in a specified financial
year is not to be applied in respect of a Temporary Protection Visa (TPV) or Safe Haven
Enterprise Visa (SHEV). These government amendments will not impact the power of the
Minister to place a cap on permanent protection visas.
These government amendments put it beyond doubt that the government will not apply the
capping mechanism to temporary classes of protection visas. To use it in respect of these visa
classes would run counter to the Governments policy objective of granting only temporary
protection to illegal maritime arrivals and encouraging the grant of SHEVs to the benefit of
regional Australia. These amendments are intended to support the introduction of TPVs and
SHEVs, which are fundamental to the Governments key objectives to process the current
backlog of illegal maritime arrivals.
FINANCIAL IMPACT STATEMENT
There are no financial implications in relation to these amendments.
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AMENDMENTS TO THE MIGRATION AMENDMENT (RESOLVING THE
ASUYLUM LEGACY) BILL 2014
NOTES ON AMENDMENTS
Amendment (1) - Schedule 2, page 28 (after line 1)
1. This amendment inserts new item 18A after item 18 of Division 2 of Part 1 of Schedule 2
to the Bill. New item 18A adds "or safe haven enterprise visas" at the end of subsection
85(2) of Subdivision AH of Division 3 of Part 2 of the Migration Act.
2. Current section 85 provides that the Minister may, by notice in the Gazette, determine the
maximum number of the visas of a specified class or the visas of specified classes that
may be granted in a specified financial year.
3. New item 12A provided by amendment (3) below inserts subsection 85(2) which provides
that subsection 85(1) does not apply in relation to temporary protection visas.
4. New item 18A amends subsection 85(2) to provide that subsection 85(1) does not apply in
relation to temporary protection visas and safe haven enterprise visas.
5. Item 18A is inserted in Division 2 of Part 1 of Schedule 2 to the Bill which contains
several amendments to the Migration Act to insert safe haven enterprise visas. The
commencement of new item 18A will therefore coincide with the commencement of safe
haven enterprise visas inserted into the Migration Act in accordance with table item 4 of
the commencement table to the Bill.
6. This amendment has the effect of excluding safe haven enterprise visas from the operation
of new subsection 85(1). The purpose of this amendment is to make it clear that the
Ministerial power to determine the maximum number of visas that may be granted in a
specified financial year cannot be exercised in respect of safe haven enterprise visas.
Amendment (2) - Schedule 7, page 111 (after line 4)
7. This amendment inserts new item 10A after item 10 of Part 1 of Schedule 7 to the Bill.
New item 10A omits "The" and substitutes "(1) Subject to subsection (2), the" in section
85 of Subdivision AH of Division 3 of Part 2 of the Migration Act.
8. This item renumbers current section 85 as subsection 85(1). Item 11 of Part 1 of Schedule
7 to the Bill in section 85 omits "notice in the Gazette" and substitutes "legislative
instrument". Item 12 of Part 1 of Schedule 7 to the Bill in paragraphs 85(a) and 85(b)
inserts "(including protection visas)" after "visas".
9. As such, new subsection 85(1) provides that subject to subsection (2), the Minister may,
by legislative instrument, determine the maximum number of:
visas (including protection visas) of a specified class; or
the visas (including protection visas) of specified classes;
that may be granted in a specified financial year
10. Item 10A is inserted in Part 1 of Schedule 7 to the Bill. The commencement of new item
10A will therefore coincide with the commencement of the other amendments in Schedule
7 to the Bill in accordance with table item 23 of the commencement table to the Bill.
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11. This item clarifies that the Ministerial power in new subsection 85(1) to place a limit on
visas is subject to new subsection 85(2) as provided for in amendments (1) and (3).
Amendment (3) - Schedule 7, Page 111 (after line 8)
12. This amendment inserts new item 12A after item 12 of Part 1 of Schedule 7 to the Bill.
New item 12A adds "(2) Subsection (1) does not apply in relation to temporary protection
visas" at the end of section 85 of Subdivision AH of Division 3 of Part 2 of the Migration
Act.
13. New subsection 85(2) provides that subsection 85(1) does not apply in relation to
temporary protection visas.
14. Item 12A is inserted in Part 1 of Schedule 7 to the Bill. The commencement of new item
12A will therefore coincide with the commencement of the other amendments in Schedule
7 to the Bill in accordance with table item 23 of the commencement table to the Bill.
15. This amendment has the effect of excluding temporary protection visas from the operation
of new subsection 85(1). The purpose of this amendment is to make it clear that the
Ministerial power to determine the maximum number of visas that may be granted in a
specified financial year cannot be exercised in respect of temporary protection visas.
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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 and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy
Caseload) Bill 2014
This Legislative Amendment 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 Legislative Amendment
Provisions introducing Temporary Protection visas (TPVs) and creating a new visa class to
be known as Safe Haven Enterprise visas (SHEVs) are to be inserted into Schedule 2 to the
Migration Act 1958 (Cth) (Migration Act) by the Migration and Maritime Powers Legislation
Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (the Bill). For human rights
considerations relating to the introduction of these visa subclasses, please see the Statement
of Compatibility (SoC) for the Bill.
The proposed changes to Schedule 2 and Schedule 7 will ensure that current section 85 is
reframed to clarify that the Ministerial power to determine the maximum number of visas that
may be granted in a specified financial year is not to be applied in respect of TPVs and
SHEVs.
The amendments would not have any impact on any other provisions relating to TPVs or
SHEVs proposed in the Bill.
Human rights implications
This amendment has been assessed against the seven core treaties that comprise Australias
human rights obligations.
The proposed legislative amendment does not engage any of the applicable rights or
freedoms and is therefore consistent with Australias international obligations.
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Conclusion
This legislative amendment does not limit any of the rights or freedoms expressed in
Australias international obligations, and is compatible with human rights for the reasons
outlined above.
The Hon. Scott Morrison, MP, Minister for Immigration and Border Protection
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