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2013 - 2014 - 2015 - 2016
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MIGRATION AMENDMENT (FAMILY VIOLENCE AND OTHER MEASURES)
BILL 2016
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Immigration and Border Protection,
the Hon. Peter Dutton MP)
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Migration Amendment (Family Violence and Other Measures) Bill 2016
OUTLINE
The Migration Amendment (Family Violence and Other Measures) Bill 2016 (the Bill)
amends the Migration Act 1958 (the Migration Act) to introduce a sponsorship framework for
the sponsored family visa program.
Currently, Division 3A of Part 2 of the Migration Act provides a sponsorship framework that
applies to the temporary sponsored work visa program. Amongst other things, this
framework requires the assessment and approval of sponsors; imposes statutory obligations
on sponsors; provides for civil penalties and administrative sanctions for breach of
sponsorship obligations; and facilitates the sharing of information between relevant parties.
The framework consists of two elements:
1. provisions in the Migration Act which provide the necessary heads of power to
implement aspects of the sponsorship framework; and
2. part 2A of the Migration Regulations 1994 (the Regulations) which prescribes details
for and in relation to the operation of the sponsorship framework.
To address the integrity issues currently experienced in the sponsored family visa program
(the program), the Bill will extend relevant aspects of this sponsorship framework to apply to
family sponsored visas with a view to:
separate sponsorship assessment from the visa application process for family
sponsored visas;
require the approval of persons as family sponsors before any relevant visa
applications are made;
impose statutory obligations on persons who are or were approved as family sponsors;
provide for sanctions if such obligations are not satisfied;
facilitate the sharing of personal information between a range of parties associated
with the program; and
improve the management of family violence in the delivery of the program by
allowing the refusal of a sponsorship application; and cancellation and / or barring of
a family sponsor where inappropriate use of the program or serious offences are
detected - especially those involving family violence.
To give effect to this extended framework, regulation amendments will be required to:
prescribe details for and in relation to the operation of the sponsorship framework for
the sponsored family visa program; and
make consequential amendments to the existing framework relating to the temporary
sponsored work visa program to reflect the new terminology referred to in the Bill.
FINANCIAL IMPACT STATEMENT
The financial impact of the Bill is low. Any costs associated with the implementation of the
proposed amendments will be met from within existing resources of the Department of
Immigration and Border Protection.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
A Statement of Compatibility with Human Rights has been completed in relation to the
amendments in this Bill and assesses that the amendments are compatible with Australia's
human rights obligations. A copy of the Statement of Compatibility with Human Rights is at
Attachment A.
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MIGRATION AMENDMENT (FAMILY VIOLENCE AND OTHER MEASURES)
BILL 2016
NOTES ON INDIVIDUAL CLAUSES
Clause 1 Short title
1. Clause 1 provides that the short title by which this Act may be cited is the Migration
Amendment (Family Violence and Other Measures) Act 2016.
Clause 2 Commencement
2. 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.
3. Table item 1 provides that sections 1 to 3 and anything in this Act not elsewhere covered
by the table will commence on the day this Act receives the Royal Assent.
4. Table item 2 provides that Schedule 1 of the Act commences on a single day to be fixed
by Proclamation. However, if the provisions do not commence within the period of 12
months beginning on the day this Act receives the Royal Assent, they commence on the
day after the end of that period.
5. The delayed commencement of Schedule 1 is to allow adequate time for regulation and
administrative changes to be made which are necessary to give effect to the legislative
changes made by this Act. It is anticipated that Schedule 1 will commence by
Proclamation in late 2016 or early 2017, however due to an impending election, this
timeframe may be delayed.
6. A note explains that this table relates only to the provisions of this Act as originally
enacted. It will not be amended to deal with any later amendments of this Act.
7. Subclause 2(2) provides that any information in column 3 of the table is not part of this
Act. Information may be inserted in this column, or information in it may be edited, in
any published version of this Act.
Clause 3 Schedules
8. This clause provides that legislation that is specified in a Schedule to this Act is amended
or repealed as set out in the applicable items in the Schedule concerned, and any other
item in a Schedule to this Act has effect according to its terms.
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SCHEDULE 1 - SPONSORED FAMILY VISAS
Part 1 - Amendments
Migration Act 1958
Item 1 Subsection 5(1)
1. This item amends subsection 5(1) of the Migration Act to define two new terms
referred to in this Act, namely approved family sponsor and approved work sponsor.
2. The item provides that an approved family sponsor means a person:
(a) who has been approved under section 140E as a family sponsor in relation to a
class prescribed by the regulations for the purpose of subsection 140E(2); and
(b) whose approval has not been cancelled under section 140M, or otherwise ceased
to have effect under section 140G, in relation to that class.
3. The item provides that an approved work sponsor means:
(a) a person:
(i) who has been approved under section 140E as a work sponsor in relation
to a class prescribed by the regulations for the purpose of subsection
140E(2); and
(ii) whose approval has not been cancelled under section 140M, or otherwise
ceased to have effect under section 140G, in relation to that class; or
(b) a person (other than a Minister) who is a party to a work agreement.
4. This item also inserts a note under the definition of approved work sponsor to clarify
that a partnership or unincorporated association (referred to in subsections 140ZB(1)
and 140ZE respectively) may be an approved work sponsor.
5. These new terms are referred to in Division 3A of Part 2 of the Migration Act, as
amended by this Act. Currently, Division 3A of Part 2 of the Migration Act provides
a sponsorship framework which only applies to the temporary sponsored work visa
program. As the amendments in this Act extend relevant parts of the sponsorship
framework to apply to the sponsored family visa program, it is necessary to
distinguish between an approved family sponsor and an approved work sponsor.
Item 2 Subsection 5(1) (definition of approved sponsor)
6. This item repeals the current definition of approved sponsor in subsection 5(1) of the
Migration Act and substitutes it with a new definition so that the term now means:
(a) an approved family sponsor; or
(b) an approved work sponsor.
7. This amendment acknowledges the extension of the sponsorship framework in
Division 3A of Part 2 of the Migration Act to the sponsored family visa program and
recognises that amended Division 3A now covers both approved family sponsors and
approved work sponsors.
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Item 3 Section 140AA (heading)
8. This item repeals the existing heading of section 140AA "Division 3A - Purposes"
and replaces it with a new heading "Purposes of this Division".
Items 4 to 8 Section 140AA, paragraph 140AA(a), subparagraph 140AA(b)(ii),
paragraph 140AA(d)
9. Currently, section 140AA sets out the purposes of Division 3A of Part 2 of the
Migration Act for the temporary sponsored work visa program.
10. As relevant parts of the sponsorship framework in Division 3A of the Migration Act
will now extend to the sponsored family visa program, it is necessary to distinguish
the "purposes" of Division 3A to the extent that it applies to the temporary sponsored
work visa program and the purposes of Division 3A to the extent that it applies to the
sponsored family visa program.
11. To give effect to this, these items make a series of minor technical amendments to
existing section 140AA to:
(a) place the existing purpose (which relates to the temporary sponsored work visa
program) into its own subsection, new subsection (1);
(b) clarify that subsection (1) sets out the purposes of Division 3A to the extent it
applies in relation to the temporary sponsored work visa program; and
(c) reflect the terminology changes inserted by this Act.
Item 9 At the end of section 140AA
12. This item inserts new subsections (2) and (3) into section 140AA to set out the
purposes of Division 3A, to the extent it applies in relation to the sponsored family
visa program and to identify how these purposes are to be achieved.
13. New subsection (2) provides that the purposes are:
(a) to strengthen the integrity of the program; and
(b) to place greater emphasis on the assessment of persons as family sponsors; and
(c) to improve the management of family violence in the delivery of the program.
14. New subsection (3) provides that the purposes referred to in subsection (2) are to be
achieved by establishing a framework that:
(a) requires the approval of persons as family sponsors before any relevant visa
applications are made; and
(b) imposes obligations on persons who are or were approved family sponsors; and
(c) provides for sanctions if such obligations are not satisfied; and
(d) facilitates the sharing of personal information in accordance with this Division.
15. While this amendment sets out the broad purposes for which relevant aspects of
Division 3A will apply to the sponsored family visa program, it is not intended to
limit the way Division 3A is interpreted or administered, or restrict any interpretation
of the provisions in the Division.
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Item 10 Subdivision B of Division 3A of Part 2 (heading)
16. Subdivision B of Division 3A of Part 2 of the Migration Act currently provides for the
approval of sponsors and the approval of nominations for the temporary sponsored
work visa program.
17. Under Division 3A, as amended by this Act, sponsorship approval will be required for
both the temporary sponsored work visa program and the sponsored family visa
program, whereas the approval of nominations will only remain relevant to the
temporary sponsored work visa program.
18. As a result, this item separates the approval of sponsors and the approval of
nominations by repealing the existing heading of Subdivision B of Division 3A of
Part 2 of the Migration Act "Approving sponsors and nominations" and replacing it
with a new heading "Approval of sponsors". Provisions relating to the approval of
nominations will now be contained in their own subdivision (inserted by item 23
below).
Item 11 Section 140E (heading)
19. This item repeals the existing heading of section 140E "Minister to approve sponsor"
and replaces it with a new heading "Minister to approve work and family sponsors".
20. This is a consequential amendment as a result of items 12 to 16 below, which extend
the operation of section 140E to apply to both work sponsors and family sponsors.
Item 12 Subsection 140E(1)
21. Currently, subsection 140E(1) of the Migration Act requires the Minister to approve a
person as a sponsor in relation to one or more classes prescribed for the purpose of
subsection (2) if prescribed criteria are satisfied.
22. To reflect the terminology changes inserted by this Act (and in particular, the new
definition of approved work sponsor inserted by item 1), this item amends subsection
140E(1) to clarify that the Minister must approve a person as a work sponsor in
relation to one or more classes prescribed for the purpose of subsection (2) if
prescribed criteria are satisfied (emphasis added).
Item 13 Subsection 140E(1) (note)
23. The note at the end of existing subsection 140E(1) provides that a person (other than a
Minister) who is a party to a work agreement is an approved sponsor and does not
need to be approved as a sponsor under this section: see paragraph (b) of the
definition of approved sponsor.
24. Again, to reflect the terminology changes inserted by this Act (and in particular, the
new definition of approved work sponsor inserted by item 1 and the new definition of
approved sponsor inserted by item 2), this item repeals the note at the end of
subsection 140E(1) and substitutes it with a new note to clarify that a person (other
than a Minister) who is a party to a work agreement is an approved work sponsor and
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does not need to be approved as a work sponsor under this section (see paragraph (b)
of the definition approved work sponsor) (emphasis added).
Item 14 Before subsection 140E(2)
25. To extend the operation of section 140E to apply to family sponsors, this item inserts
a new subsection (1A) to provide that the Minister must approve a person as a family
sponsor in relation to one or more classes prescribed for the purpose of subsection (2)
if prescribed criteria are satisfied (emphasis added).
26. A definition of approved family sponsor is inserted by item 1.
Item 15 Subsection 140E(2)
27. Currently, subsection 140E(2) of the Migration Act requires the regulations to
prescribe classes in relation to which a person may be approved as a sponsor.
28. As section 140E will now apply to both work sponsors and family sponsors, this item
amends subsection (2) to require the regulations to prescribe classes for which a
person may be approved as a work sponsor or family sponsor.
29. These classes of approved sponsor are required to be prescribed in the regulations so
that a person can be approved as a work sponsor under subsection 140E(1) or as a
family sponsor under new subsection 140(1A).
30. As the regulations are a legislative instrument, any classes of approved sponsor
prescribed for the purposes of this provision will be subject to parliamentary scrutiny
and disallowance.
Item 16 Paragraphs 140E(3)(b) and (c)
31. Currently, subsection 140E(3) of the Migration Act allows different criteria to be
prescribed for:
(a) different kinds of visa (however described); and
(b) different classes in relation to which a person may be approved as a sponsor; and
(c) different classes of person within a class in relation to which a person may be
approved as a sponsor.
32. As section 140E will now apply to both work sponsors and family sponsors, this item
makes consequential amendments to change references from "sponsor" in paragraphs
(3)(b) and (c) to "work sponsor or family sponsor".
33. This reflects the terminology changes inserted by this Act and will now allow the
regulations to prescribe different criteria for:
different kinds of visa (however described);
different classes in relation to which a person may be approved as a work
sponsor or family sponsor; and
different classes of person within a class in relation to which a person may be
approved as a work sponsor or family sponsor.
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34. As the regulations are a legislative instrument, any criteria prescribed for the purposes
of this provision will be subject to parliamentary scrutiny and disallowance.
Item 17 Section 140F (heading)
35. This item repeals the existing heading of section 140F "Process for approving
sponsors" and replaces it with a new heading "Approval process".
36. This is a consequential amendment as a result of item 18 below, which extends the
operation of section 140F to apply to both approved work sponsors and approved
family sponsors.
Item 18 Subsections 140F(1) and (2)
37. Currently, subsections 140F(1) and (2) of the Migration Act allow the regulations to
establish a process for the Minister to approve a person as a sponsor and allow
different processes to be prescribed for:
(a) different kinds of visa (however described); and
(b) different classes in relation to which a person may be approved as a sponsor.
38. To reflect the terminology changes inserted by this Act and extend section 140F to
apply to both approved work sponsors and approved family sponsors, this item makes
consequential amendments to change references from "sponsor" in subsections (1)
and (2) to "work sponsor or family sponsor".
39. This will now allow the regulations to:
establish a process for the Minister to approve a person as a work sponsor or
family sponsor; and
prescribe different processes for:
o different kinds of visa (however described); and
o different classes in relation to which a person may be approved as a work
sponsor or family sponsor.
40. As the regulations are a legislative instrument, any processes prescribed for the
purposes of this provision will be subject to parliamentary scrutiny and disallowance.
Item 19 Section 140G (heading)
41. This item repeals the existing heading of section 140G "Terms of approval as a
sponsor" and replaces it with a new heading "Terms of approval".
42. This is a consequential amendment as a result of item 20 below, which extends the
operation of section 140G to apply to both approved work and approved family
sponsors.
Item 20 Subsections 140G(1) and (4)
43. Section 140G of the Migration Act relates to the terms upon which a person is
approved as a sponsor and currently provides that:
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an approval as a sponsor may be on terms specified in the approval (subsection
140G(1));
the terms must be of a kind prescribed by the regulations (subsection 140G(2));
actual terms (rather than a kind of term) may be prescribed by the regulations
(subsection 140G(3)); and
different kinds of terms may be prescribed for:
o different kinds of visa (however described); and
o different classes in relation to which a person may be approved as a
sponsor (subsection 140G(4)).
44. To reflect the terminology changes inserted by this Act and extend section 140G to
apply to both approved work sponsors and approved family sponsors, this item makes
consequential amendments to change references from "sponsor" in subsections (1)
and (4) to "work sponsor or family sponsor".
45. In effect, this will:
allow an approval as a work sponsor or family sponsor to be on terms specified
in the approval; and
allow the regulations to prescribe (amongst other things) different kinds of terms
for:
o different kinds of visa (however described); and
o different classes in relation to which a person may be approved as a work
sponsor or family sponsor.
46. As the regulations are a legislative instrument, anything prescribed for the purposes of
this provision will be subject to parliamentary scrutiny and disallowance.
Item 21 Section 140GA (heading)
47. This item repeals the existing heading of section 140GA "Variation of terms of
approval as a sponsor" and replaces it with a new heading "Variation of terms of
approval".
48. This is a consequential amendment as a result of item 22 below, which extends the
operation of section 140GA to apply to both approved work and approved family
sponsors.
Item 22 Subsections 140GA(1) and (3)
49. Subsection 140GA of the Migration Act relates to the variation of terms of approval
as a sponsor and currently provides that:
the regulations may establish a process for the Minister to vary a term of a
person's approval as a sponsor (subsection 140GA(1));
the Minister must vary a term specified in an approval if:
o the term is of a kind prescribed by the regulations for the purposes of
paragraph 140GA(2)(a); and
o prescribed criteria are satisfied (subsection 140GA(2)); and
different processes and different criteria may be prescribed for:
o different kinds of visa (however described); and
o different kinds of terms; and
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o different classes in relation to which a person may be approved as a
sponsor (subsection 140GA(3)).
50. To reflect the terminology changes inserted by this Act and extend section 140GA to
apply to both approved work sponsors and approved family sponsors, this item makes
consequential amendments to change references from "sponsor" in subsections (1)
and (3) to "work sponsor or family sponsor".
51. In effect, this will allow the regulations to:
establish a process for the Minister for vary a term of a person's approval as a
work sponsor or family sponsor; and
prescribe (amongst other things) different processes and different criteria for
different classes in relation to which a person may be approved as a work
sponsor or family sponsor.
52. As the regulations are a legislative instrument, anything prescribed for the purposes of
this provision will be subject to parliamentary scrutiny and disallowance.
Item 23 After section 140GA
53. This item inserts a new subdivision BA "Approval of nominations made by approved
work sponsors".
54. Currently, provisions relating to the approval of nominations are contained in
Subdivision B of Division 3A. However, because they only apply to the temporary
sponsored work visa program, they will now be contained in this new subdivision BA.
Items 24 to 31 Subsections 140GB(1), (2) and (3), paragraph 140GB(4)(b), subsections
140GBA(1), (3), (5), (6) and (6A), subsection 140GBA(7) (definition of
eligible temporary visa holder), subsection 140GBB(1), subsection
140GBB(2), subsections 140GBB(4) and 140GBC(1), (2) and (3), section
140GC (note)
55. Sections 140GB, 140GBA, 140GBB, 140GBC and 140GC of the Migration Act relate
to the nomination process for the temporary sponsored work visa program. Under this
process, an approved work sponsor may nominate (and the Minister may approve) an
applicant, or proposed applicant for a prescribed temporary sponsored work visa, to
carry out work in the sponsor's business subject to the labour market testing
conditions identified in these provisions.
56. To reflect the terminology changes inserted by this Act and clarify that these
provisions only apply to approved work sponsors, items 24 to 31 make a series of
consequential amendments to sections 140GB, 140GBA, 140GBB, 140GBC and
140GC to change references from "sponsor" and "approved sponsor" to "approved
work sponsor".
Item 32 Paragraph 140H(6)(b)
57. Section 140H of the Migration Act relates to sponsorship obligations that may be
imposed on a person who is or was an approved sponsor.
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58. Currently, subsection 140H(6) of the Migration Act allows different kinds of
sponsorship obligations to be prescribed for:
(a) different kinds of visa (however described); and
(b) different classes in relation to which a person may be, or may have been,
approved as a sponsor.
59. To extend this provision to apply to both work sponsors and family sponsors this item
makes consequential amendments to change references from "sponsor" in paragraph
(6)(b) to "work sponsor or family sponsor".
60. This reflects the terminology changes inserted by this Act and will now allow the
regulations to prescribe (amongst other things) different criteria for:
different kinds of visa (however described);
different classes in relation to which a person may be, or may have been,
approved as a work sponsor or family sponsor.
61. As the regulations are a legislative instrument, anything prescribed for the purposes of
this provision will be subject to parliamentary scrutiny and disallowance.
Items 33 to 39 Subsection 140HA(1), paragraph 140HA(1)(e), paragraph 140HA(1)(g),
paragraphs 140HA(1)(h) and (i), paragraphs 140HA(2)(a) and (b),
after subsection 140HA(2), subsection 140HA(3)
62. Subsection 140HA(1) provides that, subject to subsection (2), the Minister must take
all reasonable steps to ensure that regulations made under section 504 for the purposes
of subsection 140H(1) of the Migration Act include obligations in relation to the
matters listed in subsection 140HA(1) (all of which currently relate to the temporary
sponsored work visa program).
63. Subsection 140HA(2) provides that for any particular matter mentioned in subsection
(1), the Minister must take all reasonable steps to ensure that the obligations in the
relevant regulations apply in relation to:
(a) all approved sponsors or former approved sponsors; or
(b) a specified class (or classes) of approved sponsors or former approved sponsors,
and not to all approved sponsors or former approved sponsors.
64. The amendments in items 33 to 37 make a number of minor technical amendments to
subsections 140HA(1) and (2) to reflect the terminology changes inserted by this Act
and clarify that these provisions only apply to a person who is or was an approved
work sponsor.
65. As the sponsorship framework in Division 3A of Part 2 of the Migration Act will now
extend (where relevant) to the sponsored family visa program, item 38 inserts new
subsections (2A) and (2B) into section 140HA to set out:
the kinds of sponsorship obligations that relate to the sponsored family visa
program that the Minister must take all reasonable steps to ensure are prescribed
in the regulations; and
to whom the relevant regulations will apply.
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66. In particular, new subsection 140HA(2A) provides that subject to subsection (2B), the
Minister must take all reasonable steps to ensure that regulations made under section
504 for the purposes of subsection 140H(1) include obligations in relation to the
following matters to the extent they relate to a person who is or was an approved
family sponsor:
(a) complying with prescribed requirements to keep information and provide
information to the Minister; and
(b) notifying the Minister of prescribed changes in the circumstances of the person, a
visa holder or former visa holder.
67. New subsection 140HA(2B) provides that for any particular matter mentioned in
subsection (2A), the Minister must take all reasonable steps to ensure that the
obligations in the relevant regulations apply in relation to:
(a) all approved family sponsors or former approved family sponsors; or
(b) a specified class (or classes) of approved family sponsors or former approved
family sponsors.
68. As section 140HA will now apply to approved work sponsors, approved family
sponsors, former approved work sponsors and former approved family sponsors, item
39 makes a consequential amendment to subsection 140HA(3) to provide that
subsections (1) and (2A) do not limit the sponsorship obligations that may be
prescribed for the purposes of subsection 140H(1).
69. As the regulations are a legislative instrument, anything prescribed for the purposes of
this provision will be subject to parliamentary scrutiny and disallowance.
Item 40 Subsections 140J(1) and (3)
70. Section 140J of the Migration Act relates to amounts payable in relation to
sponsorship obligations. As this provision is only relevant to the temporary sponsored
work visa program, this item makes consequential amendments to subsections 140J(1)
and (3) to change references from "approved sponsor" to "approved work sponsor",
consistent with the terminology changes inserted by this Act.
Items 41 to 48 Subparagraph 140K(1)(a)(ii), subparagraph 140K(1)(a)(iv),
subparagraph 140K(1)(a)(v), subparagraph 140K(2)(a)(i),
subparagraph 140K(2)(a)(iii), subparagraph 140K(2)(a)(iv),
subparagraph 140K(3)(a)(i), subparagraph 140K(3)(a)(ii)
71. Section 140K of the Migration Act sets out the sanctions that may apply to approved
sponsors or former approver sponsors if they fail to satisfy an applicable sponsorship
obligation.
72. Currently, subsection 140K(1) sets out actions that the Minister may take if an
approved sponsor fails to satisfy an applicable sponsorship obligation, which include
one or more of the following:
if regulations are prescribed under section 140L, bar the sponsor under
subsection 140M(1) from doing certain things;
if regulations are prescribed under section 140L, cancel the person's approval as
a sponsor under subsection 140M(1);
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apply for a civil penalty order;
accept an undertaking under the Regulatory Powers Act for the purposes of the
subdivision from the person;
if the Minister considers that the person has breached such an undertaking -
apply for an order under the Regulatory Powers Act, for the purposes of the
subdivision;
the person may be issued with an infringement notice under the regulations made
for the purposes of section 506A as an alternative to proceedings for a civil
penalty order; or
an authorised officer may require and take security under section 269 or enforce
a security already taken under that section.
73. Currently, subsection 140K(2) sets out action that the Minister may take if a former
approved sponsor fails to satisfy an applicable sponsorship obligation, which include
one or more of the following:
if regulations are prescribed under section 140L, bar the person under subsection
140M(2) from making future applications for approval;
apply for a civil penalty order;
accept an undertaking under the Regulatory Powers Act for the purposes of the
subdivision from the person;
if the Minister considers that the person has breached such an undertaking -
apply for an order under the Regulatory Powers Act, for the purposes of the
subdivision;
the person may be issued with an infringement notice under the regulations made
for the purposes of section 506A as an alternative to proceedings for a civil
penalty order; or
an authorised officer may require and take security under section 269 or enforce
a security already taken under that section.
74. To avoid doubt, subsection 140K(3) provides that subsections (1) and (2) do not limit
the circumstances in which:
(a) the Minister may:
(i) bar a sponsor under section 140M from doing certain things; or
(ii) cancel a person's approval as a sponsor under section 140M; or
(b) an authorised officer may require and take security under section 269 or enforce a
security already taken under that section.
75. To reflect the terminology changes inserted by this Act and to extend these provisions
to apply to approved work sponsors, approved family sponsors, former approved work
sponsors and former approved family sponsors, items 41, 44, 47 and 48 make
consequential amendments to:
change references from "sponsor" in subparagraphs 140K(1)(a)(ii) and
140K(3)(a)(ii) to "work sponsor or family sponsor";
clarify that the Minister may bar a person under subsection 140M(2) from
making future applications for approval as a work sponsor or family sponsor;
and
change references from "sponsor" in subparagraph 140K(3)(a)(i) to "approved
sponsor".
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76. Finally, items 42, 43, 45 and 46 make technical amendments to fix incorrect cross-
references to undertakings and orders under the Regulatory Powers Act that may be
accepted or applied for under subparagraphs 140K(1)(a)(iv) and (v) and
subparagraphs 140K(2)(a)(iii) and (iv). These provisions incorrectly referred to
sections 119 and 120 of the Regulatory Powers Act instead of sections 114 and 115
respectively.
Item 49 Paragraph 140L(3)(b)
77. Currently, subsections 140L(1) and (2) of the Migration Act allow the regulations to
prescribe circumstances in which the Minister may or must take one or more of the
barring or cancellation actions set out in section 140M. Under subsection 140L(1)
(which relates to circumstances in which the Minister may take action) the regulations
may also prescribe criteria to be taken into account by the Minister in determining
what action to take under section 140M.
78. Under subsection 140L(3) of the Migration Act, different circumstances and different
criteria may be prescribed for:
(a) different kinds of visa (however described); and
(b) different classes in relation to which a person may be, or may have been,
approved as a sponsor.
79. To extend this provision to apply to approved work sponsors, approved family
sponsors, former approved work sponsors and former approved family sponsors this
item makes consequential amendments to change references from "sponsor" in
paragraph (3)(b) to "work sponsor or family sponsor".
80. This reflects the terminology changes inserted by this Act and will now allow the
regulations to prescribe (amongst other things) different criteria for:
different kinds of visa (however described);
different classes in relation to which a person may be, or may have been,
approved as a work sponsor or family sponsor.
81. As the regulations are a legislative instrument, anything prescribed for the purposes of
this provision will be subject to parliamentary scrutiny and disallowance.
Items 50 to 53 Paragraphs 140M(1)(a) and (b), paragraph 140M(1)(c), paragraph
140M(1)(d), subsection 140M(2)
82. Currently, section 140M of the Migration Act provides the barring and cancellation
actions that the Minister may or must take against an approved sponsor or former
approved sponsor if regulations are prescribed under section 140L.
83. To reflect the terminology changes inserted by this Act and extend section 140M to
apply to approved work sponsors, approved family sponsors, former approved work
sponsors and former approved family sponsors, items 50 to 53 make consequential
amendments to clarify:
if regulations are prescribed under section 140L, the Minister may (or must):
o cancel the approval of a person as a work sponsor or family sponsor in
relation to a class or all classes to which the sponsor belongs;
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o bar the sponsor, for a specified period, from sponsoring more people
under the terms of one or more existing specified approvals as a work
sponsor or family sponsor for different kinds of visa (however
described); and / or
o bar the sponsor, for a specified period, from making future applications
for approval as a work sponsor or family sponsor in relation to one of
more classes prescribed by the regulations for the purpose of subsection
140E(2); and
if regulations are prescribed under section 140L and a person was an approved
sponsor, the Minister may (or must) bar the person, for a specified period, from
making future applications for approval as a work sponsor or family sponsor in
relation to one or more classes prescribed by the regulations for the purpose of
subsection 140E(2).
Item 54 Section 140N (heading)
84. This item repeals the existing heading of section 140N "Process for cancelling or
barring approval as a sponsor" and replaces it with a new heading "Process for
cancelling approval or barring approved sponsor".
85. This is a consequential amendment as a result of item 55 below, which extends the
operation of section 140N to apply to approved work sponsors, approved family
sponsors, former approved work sponsors and former approved family sponsors.
Item 55 Subsections 140N(1) and (3)
86. Currently, section 140N of the Migration Act allows the regulations to:
establish a process for the Minister to cancel the approval of a person as a
sponsor under section 140M (subsection 140N(1));
establish a process for the Minister to place a bar on a person under section
140M (subsection 140N(2)); and
allow different processes to be prescribed for:
o different kinds of visa (however described); and
o different classes in relation to which a person may be, or may have been,
approved as a sponsor (subsection 140N(3)).
87. To reflect the terminology changes inserted by this Act and extend section 140N to
apply to approved work sponsors, approved family sponsors, former approved work
sponsors and former approved family sponsors, this item makes consequential
amendments to change references from "sponsor" in subsections (1) and (3) to "work
sponsor or family sponsor".
88. In effect, this will allow the regulations to:
establish a process for the Minister to cancel the approval of a person as a work
sponsor or family sponsor under section 140M; and
prescribe (amongst other things) different processes for:
o different kinds of visa (however described); and
o different classes in relation to which a person may be, or may have been,
approved as a work sponsor or family sponsor.
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89. As the regulations are a legislative instrument, anything prescribed for the purposes of
this provision will be subject to parliamentary scrutiny and disallowance.
Item 56 Paragraphs 140O(4)(b) and 140P(2)(b)
90. Currently, section 140O of the Migration Act allows the Minister, in prescribed
circumstances, to waive a bar placed on a person under section 140M.
91. Pursuant to subsections 140O(3) and (4), the regulations may:
prescribe criteria to be taken into account by the Minister in determining whether
to waive the bar; and
prescribe different circumstances and different criteria for:
o different kinds of visa (however described); and
o different classes in relation to which a person may be, or may have been,
approved as a sponsor.
92. To reflect the terminology changes inserted by this Act and extend section 140O to
apply to approved work sponsors, approved family sponsors, former approved work
sponsors and former approved family sponsors, this item makes consequential
amendments to change references from "sponsor" in paragraph 140O(4)(b) to "work
sponsor or family sponsor".
93. In effect, this will allow the regulations to prescribe different circumstances and
different criteria for:
different kinds of visa (however described); and
different classes in relation to which a person may be, or may have been,
approved as a work sponsor or family sponsor.
94. Currently, section 140P of the Migration Act allows the regulations to establish a
process for the Minister to waive a bar placed on a person under section 140M.
95. Pursuant to subsection 140P(2), different processes may be prescribed for:
different kinds of visa (however described); and
different classes in relation to which a person may be, or may have been,
approved as a sponsor.
96. To reflect the terminology changes inserted by this Act and extend section 140P to
apply to approved work sponsors, approved family sponsors, former approved work
sponsors and former approved family sponsors, this item makes consequential
amendments to change references from "sponsor" in paragraph 140P(2)(b) to "work
sponsor or family sponsor".
97. In effect, this will allow the regulations to prescribe different circumstances and
different criteria for:
different kinds of visa (however described); and
different classes in relation to which a person may be, or may have been,
approved as a work sponsor or family sponsor.
98. As the regulations are a legislative instrument, anything prescribed for the purposes of
these provisions will be subject to parliamentary scrutiny and disallowance.
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Items 57 to 59 Subsection 140S(1), paragraph 140X(a), paragraph 140X(aa)
99. Section 140S of the Migration Act relates to the liability and recovery of amounts
payable in relation to sponsorship obligations and section 140X relates to the powers
of inspectors.
100. As these provisions are only relevant to the temporary sponsored work visa program,
items 57 to 59 make consequential amendments sections 140S and 140X to reflect
terminology changes inserted by this Act and clarify that these provisions only apply
to approved work sponsors or former approved work sponsors.
Items 60 to 63 Subsection 140ZH(1), at the end of subsections 140ZH(2) and (3),
before subsection 140ZH(4), subsection 140ZH(4)
101. Section 140ZH of the Migration Act relates to the disclosure of personal information
by the Minister and currently:
allows the Minister to disclose personal information of a prescribed about a
person mentioned in column 2 of the table in relation to an item to the person or
persons mentioned in column 3 of the table in relation to the item (subsection
140ZH(1)).
allows the regulations to prescribe circumstances in which the Minister may
disclose the personal information (subsection 140ZH(2)):
allows the regulations to prescribe circumstances in which the recipient may use
or disclose the personal information disclosed (subsection 140ZH(3)); and
requires the Minister, if disclosing personal information under subsection (1)
(other than to an agency of the Commonwealth or a State or Territory prescribed
by the regulations) to give written notice to the person about whom the
information is disclosed of:
o the disclosure; and
o the details of the personal information disclosed (subsection 140ZH(4)).
102. Currently, under subsection 140ZH(1), disclosures of personal information of a
prescribed kind may be made in relation to a visa holder, a former visa holder, an
approved sponsor of a visa holder or former visa holder or a former approved sponsor
of a visa holder or former visa holder.
103. To extend section 140ZH to apply to both the temporary sponsored work visa
program and the sponsored family visa program, a number of technical amendments
are necessary to:
reflect new terminology inserted by this Act; and
distinguish between disclosures that may be made in relation to the temporary
sponsored work visa program and disclosures that may be made in relation to the
sponsored family visa program.
104. To give effect to this, item 60 repeals and substitutes existing subsection 140ZH(1) to
provide that the Minister may disclose personal information of a prescribed kind
about a person mentioned in column 2 of an item of the table to a person or body
mentioned in column 3 of the item.
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105. The table in new subsection 140ZH(1) provides that:
if the personal information of a prescribed kind is about a person who is a holder
of, or former holder of, a visa of a prescribed kind, then the Minister may disclose
that personal information to an approved work sponsor of the person, a former
approved work sponsor of the person or an agency of the Commonwealth or of a
State or Territory prescribed by the regulations; or
if the personal information of a prescribed kind is about an approved work
sponsor of, or former approved work sponsor of a person mentioned in item 1 of
the table, then the Minister may disclose that personal information to the person
or an agency of the Commonwealth or of a State or Territory prescribed by the
regulations.
106. Item 60 also inserts new subsection 140ZH(1A) with a heading "personal information
about approved family sponsors etc." to:
clarify that this subsection applies to disclosures that may be made in relation to
the temporary sponsored work visa program; and
reflect new terminology inserted by this Act.
107. Under new subsection 140ZH(1A), the Minister may disclose personal information of
a prescribed kind about a person mentioned in column 2 of an item of the table to a
person or body mentioned in column 3 of the item.
108. The table in new subsection 140ZH(1A) provides that:
if the personal information of a prescribed kind is about a person who proposes to
apply for a visa of a prescribed kind then, the Minister may disclose that personal
information to an applicant for approval as a family sponsor in relation to the
person; an approved family sponsor of the person; or an agency of the
Commonwealth or of a State or Territory prescribed by the regulations;
if the personal information of a prescribed kind is about a person who is an
applicant for, or a holder or former holder of, a visa of a prescribed kind then, the
Minister may disclose that personal information to an approved family sponsor of
the person; or an agency of the Commonwealth or of a State or Territory
prescribed by the regulations;
if the personal information of a prescribed kind is about an applicant for approval
as a family sponsor then, the Minister may disclose that personal information to a
person who proposes to apply for a visa if the applicant is approved as a family
sponsor; or an agency of the Commonwealth or of a State or Territory prescribed
by the regulations;
if the personal information of a prescribed kind is about an approved family
sponsor of a person mentioned in item 1 or 2 of the table then, the Minister may
disclose that personal information to the person; or an agency of the
Commonwealth or of a State or Territory prescribed by the regulations; and
if the personal information of a prescribed kind is about a former approved family
sponsor of a person who is an applicant for, or a holder of, a visa of a prescribed
kind then, the Minister may disclose that personal information to the person; or an
agency of the Commonwealth or of a State or Territory prescribed by the
regulations.
109. Importantly, the amendments in item 60 do not change the disclosures that are
currently authorised under existing subsection 140ZH(1) for the temporary sponsored
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work visa program. Rather, the repeal and substitution of subsection 140ZH(1) gives
effect to a range of minor technical amendments to:
reflect new terminology inserted by this Act;
insert a new heading "personal information about approved work sponsors etc."
to clarify that subsection 140ZH(1) applies to disclosures that may be made in
relation to the temporary sponsored work visa program;
provide consistency with the drafting of new subsection 140ZH(1A);
condense existing items 1 and 2 into a new item 1 in the table and condense
existing items 3 and 4 into a new item 2 in the table to reduce repetition (noting
that the disclosures can be made to the same people); and
clarify that a disclosure under subsection 140ZH(1) may be made to a person or
body mentioned in column 3 of the table. Again, this provides consistency with
the drafting of new subsection 140ZH(1A).
110. The addition of new subsection 140ZH(1A) is intended to:
distinguish the disclosures that may be made in relation to the temporary
sponsored work visa program from the disclosures that may be made in relation
to the sponsored family visa program; and
allow disclosures of personal information about a broader range of people in the
sponsored family visa program (including prospective visa applicants, visa
applicants and applicants for approval as a family sponsor).
111. As a result of the new provisions inserted by item 60, both the temporary sponsored
work visa program and the sponsored family visa program will need to prescribe the
following information in the regulations (when the provisions commence):
the kinds of personal information that may be disclosed by the Minister under
their respective disclosure provisions in subsections 140ZH (1) and (1A); and
the kinds of visas to which they need their respective disclosure provisions in
subsections 140ZH (1) and (1A) to apply. This is a new requirement under
section 140ZH which is necessary to distinguish between the different disclosure
requirements (depending on the work / family context). Unfortunately the use of
generic references to "visa holders" for example is not possible under amended
section 140ZH because it would not be clear whether the reference (and context)
is to a temporary sponsored work visa holder or a family sponsored visa holder.
112. The remaining items 61 to 63 make consequential amendments to existing subsections
140ZH(2), (3) and (4) to clarify that:
the regulations may prescribe circumstances in which the Minister may disclose
the personal information under subsection 140ZH(1) or (1A);
the regulations may prescribe circumstances in which the recipient may use or
disclose the personal information disclosed under subsection 140ZH(1) or (1A);
and
subsection (4) applies to disclosures of personal information under subsection
140ZH(1) or (1A).
113. As the regulations are a legislative instrument, anything prescribed for the purposes of
these provisions will be subject to parliamentary scrutiny and disallowance.
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Item 64 Subsection 140ZJ(1)
114. Section 140ZJ of the Migration Act relates to unclaimed money in relation to a
sponsorship obligation.
115. As this provision is only relevant to the temporary sponsored work visa program, this
item makes a consequential amendment to subsection 140ZJ(1) to change the
reference from "approved sponsor" to "approved work sponsor", consistent with the
terminology changes inserted by this Act.
Items 65 to 66 Section 245AQ (definition of sponsor class), section 245AQ (paragraphs
(a) and (b) of the definition of sponsorship- related event)
116. Section 245AQ defines terms for the purposes of Subdivision D of Division 12, Part 2
of the Migration Act, which relates to offences and civil penalties relevant to
sponsored visas.
117. Under this provision, "sponsorship-related event" is defined to include, amongst other
things, a person applying for approval as a sponsor under section 140E in relation to a
sponsor class and a person applying for a variation of a term of an approval as a
sponsor under section 140E in relation to a sponsor class. "Sponsor class" is also
defined in this provision and means a prescribed class of sponsor.
118. As these definitions relate to sponsors in Division 3A of the Act, these items make
minor amendments to change references from "sponsor" to "work sponsor or family
sponsor".
119. These amendments are consequential only (to pick up the terminology changes made
by this Act), and will not extend the application of Subdivision D of Division 12, Part
2 of the Migration Act to the sponsored family visa program. It may, however, apply
to the program in the future but only if regulations are made to prescribe the relevant
class(es) of family sponsor and relevant kind(s) of sponsored family visas for the
purposes of that Subdivision.
Part 2 - Transitional and application provisions
Item 67 Definitions
120. This item provides definitions for the purposes of this Part such that commencement
means the commencement of this item and Migration Act means the Migration Act
1958.
Item 68 Existing approvals of sponsors
121. This item provides that it will apply if:
(a) a person was approved as a sponsor under section 140E of the Migration Act
before commencement of this item; and
(b) immediately before commencement of this item, the approval is in effect.
122. The purpose of this item is to clarify that:
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the person's approval continues to have effect (and may be dealt with) after
commencement of this item, as if it were an approval of the person as a work
sponsor under section 140E of the Migration, as amended by this Schedule; and
despite the amendments of sections 140G and 140GA of the Migration Act made
by this Schedule, a term of the person's approval continues to have effect after
commencement of this item and may be varied after commencement in
accordance with section 140GA of the Migration Act, as amended by this
Schedule.
Item 69 Continuation of bars placed on persons
123. This item provides that it will apply if:
(a) before commencement of this item, a person was barred, under section 140M of
the Migration Act, from doing a thing for a particular period; and
(b) immediately before commencement of this item, that period has not ended.
124. The purpose of this item is to clarify that despite the amendments of sections 140K,
140L and 140M of the Migration Act made by this Schedule, the bar:
(a) continues to have effect after commencement of this item; and
(b) may be waived after commencement of this item in accordance with sections
140O and 140P of that Act, as amended by this Schedule.
Item 70 Application - subsections 140ZH(1) and (1A) of the Migration Act
125. This item clarifies that subsections 140ZH(1) and (1A) of the Migration Act, as
inserted by this Schedule, apply in relation to the disclosure of personal information
after commencement of this item, whether the information was collected before or
after commencement.
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Attachment A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration Amendment (Family Violence and Other Measures) Bill 2015
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
This Bill establishes a new assessable sponsorship framework for family sponsored visas
through amendments to the Migration Act 1958 ("the Act").
This new framework will strengthen integrity, consistency and applicant protection available
within the family visa program. The Bill will create a framework to apply to all family
sponsored visas with a view to:
separate sponsorship assessment from the visa application process;
require the approval of persons as family sponsors before any relevant visa
applications are made;
impose statutory obligations on persons who are or were approved as family sponsors;
provide for sanctions if such obligations are not satisfied; and
facilitate the sharing of personal information between parties to the application; and
improve the management of family violence where it occurs in the family visa
program.
The amendments will initially apply to partner visas. The sponsorship framework will be
extended to other visas in the family program following its implementation in partner visas.
Once approved, the sponsorship will remain in effect until the person(s) proposed are granted
a permanent visa, unless ceased earlier through a prescribed event.
Newly arrived migrants are among the more vulnerable people in our community. They are
less likely to have an established support network, may not have an English speaking
background, and are less likely to know how to seek assistance. The purpose of the changes
as they relate to the partner visa program is to support the National Plan to Reduce Violence
against Women and their Children by implementing the relevant part of
Action Item 11 from the Second Action Plan:
requiring additional information disclosure by the Australian husband or fiancé applying for
an overseas spouse visa
The Bill also replaces some of the existing undertakings with statutory obligations, and
provides for sanctions if they are not complied with. The obligations for partner visa
sponsors will be to: maintain evidence of any claims they make throughout the sponsorship
period; provide such evidence when requested by the Department; and to notify the
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Department of any changes material to the sponsorship, such as a breakdown of the
relationship.
Human rights implications
Right to Family
Article 17 of International Covenant on Civil and Political Rights (ICCPR) states:
No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home
or correspondence, nor to unlawful attacks on his honour and reputation.
Article 23 of ICCPR states:
The family is the natural and fundamental group unit of society and is entitled to protection
by society and the State.
Article 10 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)
states:
The States Parties to the present Covenant recognize that:
The widest possible protection and assistance should be accorded to the family, which is the
natural and fundamental group unit of society, particularly for its establishment and while it
is responsible for the care and education of dependent children. Marriage must be entered
into with the free consent of the intending spouses.
This Bill will extend relevant aspects of the existing sponsorship framework (contained in
Division 3A of Part 2 of the Act) to family visas. It will not extend elements that were
designed for employment related activities, specifically:
The provisions relating to nominations, which are unique to the employer-employee
relationship that exists within sponsored work arrangements.
The Inspector powers, which are designed for employment related enforcement
activities.
The new framework requires approval of sponsorship before a valid visa application can be
made. This change avoids the situation where the visa applicant is refused a visa as a result
of concerns relating to the sponsor.
For the Partner visa program, the existing requirement for a police check to be undertaken by
some sponsors will be expanded so that all sponsors will be required to undertake these
checks. Police checks are currently conducted for the protection of children. As such
departmental consideration is in relation to paedophilia and other sexual offences relating to
minors. The expanded requirement for sponsors will be aligned with the checking
requirements that exist for partner visa applicants, and will allow consideration of the
potential for violence against immediate family members by all parties to the application.
The underlying principle is that relevant information in these areas be shared between parties
to the application. Where this is not occurring, the Department will be authorised to disclose
relevant information between the parties and/or refuse the application.
Sponsorship applications will be subject to refusal in limited circumstances. These include
where the sponsor has convictions for:
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paedophilia or other sexual offences against minors; or
offences relating to violence.
Convictions for offences in these areas will not lead to a mandatory refusal. Any refusals will
be discretionary and consider a range of factors including: the length of the relationship; the
type of offence; how recently the offence occurred; relevance to the family relationship; and
any mitigating circumstances. Natural justice will be provided prior to a final decision to
refuse the application being taken by the Department. Refused applicants will have access to
merits review by the Administrative Appeals Tribunal.
Any limitations on the right to family, through the ability to refuse sponsorship for a family
visa, are reasonable and necessary for the safety and welfare of prospective migrants and
minor children, who are among the most vulnerable in the community.
Right to Privacy
Article 17 of the ICCPR states:
No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home
or correspondence, nor to unlawful attacks on his honour and reputation.
The information sharing provisions that currently exist in Division 3A of Part 2 of the Act
will be extended, where relevant, to Family visas. In making their applications, sponsors and
visa applicants will agree for the results from their Police checks, and for details of relevant
migration-related activities, to be shared with other parties to the application. The purpose of
these provisions is to encourage the sharing of relevant information so that both applicants
and sponsors can make fully informed decisions before committing to the visa application
processes.
Any limitations to privacy are required to ensure all parties to an application are fully aware
of their prospective partner's history, especially with regards to instances of family violence
or previous sponsorships. Personal information collected, used, stored and disclosed during
this process will be treated in accordance with the Privacy Act 1988.
Rights relating to children
Article 3 of the Convention on the Rights of the Child states:
1. In all actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the best interests
of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is necessary for
his or her well-being, taking into account the rights and duties of his or her parents, legal
guardians, or other individuals legally responsible for him or her, and, to this end, shall take
all appropriate legislative and administrative measures.
3. States Parties shall ensure that the institutions, services and facilities responsible for the
care or protection of children shall conform with the standards established by competent
authorities, particularly in the areas of safety, health, in the number and suitability of their
staff, as well as competent supervision.
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The introduction of an assessable sponsorship framework will advance the rights of the Child
in accordance with Article 3 of the CRC, particularly 3 (2) that Parties undertake to ensure
the child such protection and care as is necessary for his or her well-being.
In developing the policies reflected in this Bill, the best interests of the child have been a
primary consideration.
The expansion of police checking to all sponsors and broadening the assessment to include
convictions that may indicate an increased risk of family violence strengthens the existing
requirements. As a result the level of risk of family violence that visa applicants and their
children may be exposed to as a result of a partner migration process should be lessened.
The continuation of existing waiver and appeal provisions ensure that children will not be
arbitrarily denied access to their parents.
Right not to be tried or punished twice
Article 14 (7) of the ICCPR states:
No one shall be liable to be tried or punished again for an offence for which he has already
been finally convicted or acquitted in accordance with the law and penal procedure of each
country.
Under the proposed sponsorship framework, sponsor applicants will be subject to refusal as a
result of certain past convictions. The refusal authority will be a discretionary power that will
balance the relevant past history of the sponsor applicant with both their right of access to
other family members and possible risk to other family members. Those sponsors refused
will be afforded natural justice and can seek merits review of the decision.
Conclusion
The Bill is compatible with human rights because the objective of the Bill advances the
protection of human rights, especially with regard to the rights of the family and child not to
be subjected to family violence. Where there are limits to human rights, such as with respect
to family and privacy, those limitations are reasonable, necessary, proportionate and
rationally connected to achieve a legitimate objective which is to and inform potentially
vulnerable people and protect them from harm.
Hon Peter Dutton MP, Minister for Immigration and Border Protection