Commonwealth of Australia Explanatory Memoranda

[Index] [Search] [Download] [Bill] [Help]


MIGRATION AND MARITIME POWERS LEGISLATION AMENDMENT (RESOLVING THE ASYLUM LEGACY CASELOAD) BILL 2014

                                 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)


1 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 Asylum 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 the Bill are a continuation of the Government's 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 to introduce new Schedule 2A to the Bill. The amendments in Schedule 2A to the Bill will introduce into the Migration Act and the Migration Regulations 1994 (Migration Regulations) a mechanism to enable the Minister to make a disallowable legislative instrument to prescribe the least combined number of Protection (Class XA) and Refugee and Humanitarian (Class XB) visas to be granted for a specified financial year. FINANCIAL IMPACT STATEMENT The financial impact of these amendments will be reflected in the Humanitarian Programme costs for affected agencies.


2 AMENDMENTS TO THE MIGRATION AMENDMENT (RESOLVING THE ASUYLUM LEGACY) BILL 2014 NOTES ON AMENDMENTS Amendment (1) - Clause 2, page 2 (after table item 9), insert: 1. This amendment inserts new table item 9A into subclause 2(1) of the Bill. Subclause 2(1) provides that each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. 2. New table item 9A provides that Schedule 2A commences the day after this Act receives the Royal Assent. Amendment (2) - Page 49 (after line 23), after Schedule 2, insert: 3. This amendment inserts new Schedule 2A - Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas after Schedule 2 to the Bill. Migration Act 1958 Item 1 After section 39 4. Item 1 of new Schedule 2A to the Bill provided by amendment (2) inserts new section 39A after section 39 of Division 3 of Part 2 of the Migration Act. 5. Section 39 of the Migration Act allows the Minister to determine the maximum number of visas in a specified class that may be granted in a specified programme year. It is one of the provisions in the Migration Act used to manage immigration programmes. 6. Section 39 currently provides that in spite of section 14 of the Legislative Instruments Act 2003, a prescribed criterion for visas of a class, other than protections visas, may be the criterion that the grant of the visa would not cause the number of visas of that class granted in a particular financial year to exceed whatever number is fixed by the Minister, by legislative instrument, as the maximum number of such visas that may be granted in that year (however the criterion is expressed). 7. Subsection 39(2) currently provides that for the purposes of the Migration Act, when a criterion allowed by subsection 39A(1) prevents the grant in a financial year of any more visas of a particular class, any outstanding applications for the grant in that year of visas of that class are taken not to have been made. 8. New subsection 39A(1) provides that despite any regulation made for the purposes of section 39, the Minister must take all reasonably practicable measures to ensure the grant in a financial year of at least the minimum total number of Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas that is determined by the Minister under subsection 39A(3) for that year. 9. New subsection 39A(2) provides that subsection 39A(1) applies subject to the Migration Act, and to any regulation or instrument made under or for the purposes of the Migration Act (other than section 39 of the Migration Act).


3 10. New subsection 39A(3) provides that the Minister may, by legislative instrument, determine a minimum total number of Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas for a financial year specified in the determination. 11. New subsection 39A(4) provides that despite subsection 44(2) of the Legislative Instruments Act 2003, section 42 (disallowance) of that Act applies to a legislative instrument made under subsection 39A(3). 12. New subsection 39A(5) provides that in new section 39A the term Protection (Class XA) visas means visas classified by regulation as Protection (Class XA) visas. The Note to this definition provides that for this class of visas, see clause 1401 of Schedule 1 to the Migration Regulations. 13. New subsection 39A(5) also provides that in new section 39A the term Refugee and Humanitarian (Class XB) visas means visas classified by regulation as Refugee and Humanitarian (Class XB) visas. The note to this definition provides that for this class of visas, see clause 1402 of Schedule 1 to the Migration Regulations. 14. The term Protection (Class XA) visas is intended to cover a Protection (Class XA) visa, subclass 866 only. The definition in new subsection 39A(5) does not include other types of protection visas provided for by new section 35A, for example temporary protection visas and safe haven enterprise visas introduced by the Bill. 15. The term Refugee and Humanitarian (Class XB) visas is intended to cover the relevant subclasses for the Refugee and Humanitarian (Class XB) visa provided in Item 1402 of Schedule 1 to the Migration Regulations, which currently include: o subclass 200 (Refugee); o subclass 201 (In-country Special Humanitarian); o subclass 202 (Global Special Humanitarian); o subclass 203 (Emergency Rescue); and o subclass 204 (Woman at Risk). 16. The effect of new section 39A is to introduce into the Migration Act a mechanism to make a legislative instrument to specify a combined minimum number of places in Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas to be granted for a specified financial year. The amendment also makes clear that this is despite any regulation made for the purposes of section 39. 17. Delivery of a balanced migration programme, in line with the Australian Government's objectives, requires careful management. The Migration Act currently provides that where demand for places in the migration programme exceeds the number of places available, there are a number of mechanisms available, such as current section 39, to assist in managing the flow of applications and to ensure visa grants are in line with the annual planning and budgetary levels. 18. New subsection 39A provides that the Minister must take all reasonably practicable measures to ensure that the combined minimum number of placements in the Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas to be granted for a specified financial year. These amendments provide for a balance between ensuring that there is a transparent level of Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas aimed to be granted in a specified financial year and delivery of a balanced migration programme. The amendments demonstrate the


4 Government's commitment to a strong humanitarian intake, focused on those overseas most in need of resettlement. 19. The legislative instrument provided for in these amendments is subject to disallowance. Item 26 of the table in subsection 44(2) of the Legislative Instruments Act 2003 provides that legislative instruments under Part 1, 2 or 9 of the Migration Act, or legislative instruments under Part 1, 2 or 5, or Schedule 1, 2, 4, 5A, 6, 6A or 8, of the Migration Regulations. 20. New subsection 39A(3) will reside in Part 2 of the Migration Act. Consequently, the operation of the Legislative Instruments Act 2003 would mean that a legislative instrument made under new subsection 39A(3) of the Migration Act would not be subject to disallowance. However, the effect of new subsection 39A(4) is that a legislative instrument made under new subsection 39A(3) is subject to disallowance. The purpose of this amendment is to provide for Parliamentary Scrutiny of this new regime that provides for combined minimum annual numbers of Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas.


5 Statement of Compatibility with Human Rights Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 Humanitarian Programme government amendment: Increases in the number of Refugee and Humanitarian (Class XB and Class XA) visas to be granted each year This Legislative Instrument 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 Instrument The Humanitarian Programme (a) provides resettlement in Australia to people who are subject to persecution or substantial discrimination amounting to a gross violation of their human rights in their home country and (b) is an avenue to provide protection to people in Australia who engage Australia's protection obligations under the United Nations 1951 Convention relating to the Status of Refugees and its 1967 Protocol (Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The Migration Regulations 1994 (the Regulations) are amended to provide for two permanent increases over four years in the total number of places available under the Humanitarian Programme each year. The amendments allow Australia to assist more refugees and other people in humanitarian need of resettlement, including those with family and community links in Australia. Human rights implications The Legislative Instrument specifies in legislation the number of places in the Humanitarian Programme, and raises it over time, thereby improving the situation for persons who are seeking resettlement or protection in Australia and thus is rights positive. The Legislative Instrument engages Australia's non-refoulement obligations under the ICCPR and CAT - that is the obligation not to return a person where it would result in them being arbitrarily deprived of their life, have the death penalty carried out or be subjected to torture or to cruel, inhuman or degrading treatment or punishment. The amendments support this objective by providing additional places in the overall Humanitarian Programme, some of which may be used, if required, for the purpose of granting visas to persons in Australia who engage these obligations or the non-refoulement obligation under the Refugees Convention. Article 10 of the Convention on the Rights of the Child (CRC) requires that applications for family reunification made by minors or their parents are treated in a positive, humane and expeditious manner. This amendment supports this objective by providing additional places in the overall Humanitarian Programme, a proportion of which will be used for family reunification purposes. Conclusion The Legislative Instrument is compatible with human rights. The Hon. Scott Morrison MP, Minister for Immigration and Border Protection


Index] [Search] [Download] [Bill] [Help]