Commonwealth Numbered Regulations - Explanatory Statements
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HOME AFFAIRS LEGISLATION AMENDMENT (2020 MEASURES NO. 1) REGULATIONS 2020 (F2020L00281)
EXPLANATORY STATEMENT
Issued by the Minister for Population, Cities and Urban Infrastructure
for the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Australian Citizenship Act 2007
Migration Act 1958
Home Affairs Legislation Amendment (2020 Measures No. 1)
Regulations 2020
The Migration Act 1958 (the Migration Act) is an Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons.
The Australian Citizenship Act 2007 (the Citizenship Act) provides for the process of becoming an Australian citizen, the circumstances in which citizenship may cease, and some other matters related to citizenship.
Subsection 504(1) of the Migration Act provides that the Governor-General may make regulations, not inconsistent with the Migration Act, prescribing matters required or permitted to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Migration Act.
Section 54 of the Citizenship Act provides that the Governor-General may make regulations prescribing matters required or permitted by the Citizenship Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Citizenship Act.
In addition, regulations may be made pursuant to the provisions listed in Attachment A.
The purpose of the Home Affairs Legislation Amendment (2020 Measures No. 1) Regulations 2020 (the Regulations) is to amend the Migration Regulations 1994 (the Migration Regulations) and the Australian Citizenship Regulation 2016 (the Citizenship Regulation).
Schedule 1 makes routine amendments to the Citizenship Regulation to incorporate instruments made under the Migration Regulations updating the places and currencies in which citizenship application fees may be paid and the relevant exchange rates.
Schedule 2 amends the Migration Regulations to allow the Minister responsible for skills assessment services to delegate the power to approve persons and bodies to be relevant assessing authorities, for the purposes of assessing the occupational skills of applicants for skilled visas.
Schedule 3 amends the Migration Regulations to make a minor technical amendment.
A Statement of Compatibility with Human Rights (the Statement) has been completed in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The overall assessment is that the Regulations are compatible with human rights. A copy of the Statement is at Attachment B.
The Office of Best Practice Regulation (the OBPR) has been consulted in relation to the amendments. No Regulation Impact Statement is required. The OBPR consultation references are:
* Schedule 1 - 25232;
* Schedule 2 - 25892; and
* Schedule 3 - 25045 (The OBPR was consulted when the Migration Amendment (New Skilled Regional Visas) Regulations 2019 were introduced and advised that there was no regulatory impact. The amendment made by Schedule 3 is a minor editorial change to a provision inserted by those Regulations.)
In relation to Schedules 1 and 3, no consultation was undertaken as the amendments do not substantially alter existing arrangements. This accords with subsection 17(1) of the Legislation Act 2003 (the Legislation Act).
In relation to Schedule 2, consultation was undertaken with the Department of Employment, Skills, Small and Family Business, the Department of Education (from 1 February 2020, these Departments merged into the Department of Education, Skills and Employment) and the Attorney-General's Department.
Schedule 1 to the Regulations commences on 1 July 2020, at the same time as the incorporated instruments. Schedules 2 and 3 commence on 29 March 2020 to align with changes to Departmental systems.
The Department of Home Affairs follows standard practices to notify clients about the Regulations, including updating its website and notifying peak bodies.
Further details of the Regulations are set out in Attachment C.
The Migration Act and Citizenship Act specify no conditions that need to be satisfied before the power to make the Regulations may be exercised.
The Regulations are a legislative instrument for the purposes of the Legislation Act.
ATTACHMENT A
AUTHORISING PROVISIONS
Subsection 504(1) of the Migration Act 1958 (the Migration Act) relevantly provides that the Governor-General may make regulations prescribing matters required or permitted to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Migration Act.
Section 54 of the Australian Citizenship Act 2007 (the Citizenship Act) relevantly provides that the Governor-General may make regulations prescribing matters required or permitted by the Citizenship Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Citizenship Act.
In addition, the following provisions of the Migration Act may apply:
* subsection 31(3), which provides that the regulations may prescribe criteria for a visa or visas of a specified class; and
* paragraph 46(1)(b), which provides that the regulations may prescribe the criteria and requirements for making a valid application for a visa.
The following provisions of the Citizenship Act may also apply:
* subsection 21(1), which provides that a person may make an application to the Minister to become an Australian citizen; and
* paragraph 46(1)(d), which provides that an application under a provision of the Citizenship Act must be accompanied by the fee (if any) prescribed by the regulations.
ATTACHMENT B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Home Affairs Legislation Amendment (2020 Measures No. 1) Regulations 2020
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.
Schedule 1 - Payment of Citizenship fees
Overview
Schedule 1 to the Home Affairs Legislation Amendment (2020 Measures No. 1) Regulations 2020 (the Amendment Regulations) amends the Australian Citizenship Regulation 2016 (the Citizenship Regulation) to allow citizenship application fees, and refunds of citizenship application fees where appropriate, to be paid in foreign countries and foreign currencies.
In particular, Schedule 1 amends subsection 16(7) of the Citizenship Regulation to incorporate, by reference, updated instruments made under the Migration Regulations 1994 (the Migration Regulations) that relate to the payment of fees in foreign countries and foreign currencies. Australian Government offices overseas routinely collect Australian citizenship application fees. These amendments facilitate the lawful collection of citizenship application fees in specified foreign countries and foreign currencies at updated exchange rates.
Subsections 16(2) and (3) of the Citizenship Regulation provide that the application must be made in a place, and in the currency, specified in the 'places and currencies instrument'. Subsection 16(4) of the Citizenship Regulation provides that, if the currency in which the payment is to be made is specified in the 'conversion instrument', the amount of the payment is to be worked out using the exchange rate for the currency specified in the instrument. These instruments are defined in subsection 16(7) of the Citizenship Regulation and are
re-made under the Migration Regulations every six months to reflect currency fluctuations and changes to acceptable currencies. Consequently, subsection 16(7) of the Citizenship Regulation requires biannual amendment to reflect the current version of these instruments.
Purpose of amendments
The acceptable foreign countries and currencies are set out in legislative instruments made under subregulations 5.36(1) and (1A) of the Migration Regulations. The Australian Citizenship Act 2007 does not allow for the making of a legislative instrument under the Citizenship Regulation to specify matters in relation to the collection of application fees in foreign countries and foreign currencies. Instead, subsection 16(7) of the Citizenship Regulation incorporates by reference instruments made under the Migration Regulations to specify the foreign countries where a fee may be paid, the currency that can be accepted in each listed country and the currency exchange rate that must be applied.
As a result, the relevant instruments, Places and Currencies for Paying of Fees and Payment of Visa Application Charges and Fees in Foreign Currencies, are updated on 1 January and
1 July each year, and amendments to the Citizenship Regulation are made to incorporate those instruments from that date. The only amendments this disallowable legislative instrument makes to the Citizenship Regulation are the updating of the instrument numbers in subsection 16(7). As such, the amendments are technical in nature and do not substantially alter existing arrangements.
Human rights implications
The amendments made by Schedule 1, therefore, do not engage any of the applicable rights or freedoms.
Conclusion
This Schedule is compatible with human rights as it does not raise any human rights issues.
Schedule 2 - Approving relevant assessing authorities
Overview
The skilled stream of Australia's migration and temporary entry program allows the entry and stay of foreign nationals who wish to enter Australia for the purpose of undertaking skilled employment. Under the Migration Regulations, it is a requirement for a number of visas in the skilled stream that a relevant assessing authority has assessed the visa applicant's skills as suitable for the applicant's nominated skilled occupation.
Subregulation 2.26B(1) of the Migration Regulation provides that the Minister (being the Minister who administers the Migration Act 1958 and the Migration Regulations) may, by instrument, specify a person or body as the relevant assessing authority for this purpose. Currently under subregulation 2.26B(1A), the Employment or Education Minister must give their approval for organisations to become relevant assessing authorities under the Migration Regulations.
The main amendments made by Schedule 2 to regulations 1.03 and 2.26B of the Migration Regulations:
* insert a definition of 'Skills Assessment Minister'. The purpose of this amendment is to replace the references to the Employment Minister and the Education Minister as the Ministers responsible for skills assessment services following changes to the Administrative Arrangements Orders. From 1 February 2020, the Minister having responsibility for skills assessment services is the Minister for Education, Skills and Employment. The wording of the new definition of 'Skills Assessment Minister' ensures that the definition will remain current, without requiring amendments to the Migration Regulations, irrespective of any future changes to the name of the relevant Minister's portfolio; and
* provide for the Skills Assessment Minister to be able to delegate their powers to approve relevant assessing authorities to officers within their Department at SES Band 1 level and above having responsibility for skills assessment services for the purposes of the skilled migration program. The purpose of this amendment is to allow for more timely approvals of organisations as relevant assessment authorities, as it allows the Skills Assessment Minister to delegate their powers where performance of the function acting personally would add to the Minister's workload unnecessarily.
Human rights implications
The amendments do not make any changes to the existing requirement in the Migration Regulations that applicants for certain skilled stream visas must have their skills assessed by an approved skills assessing authority to function effectively in their job or change the requirement that assessing authorities be approved for this purpose. Rather the amendments made by this Schedule allow for a more timely process to approve organisations as assessing authorities by allowing the Minster responsible for skills assessment functions to delegate the approval power, as well as updating the references to the relevant Ministers due to changes to the Administrative Arrangements Orders.
The amendments made by Schedule 2, therefore, do not engage any of the applicable rights or freedoms.
Conclusion
This Schedule is compatible with human rights as it does not raise any human rights issues.
Schedule 3 - Miscellaneous amendments
Overview
The amendment made by item 1 of Schedule 3 removes the word 'visa' at the end of a reference to 'Skilled Employer Sponsored Regional (Provisional) (Class PE)'. The word 'visa' was inadvertently added to the paragraph and is inconsistent with other references to visa classes. The removal of the word is of stylistic effect only and does not have any substantive effect.
Human rights implications
This Schedule does not engage any of the applicable rights or freedoms.
Conclusion
Schedule 3 is compatible with human rights as it does not raise any human rights issues.
The Hon Alan Tudge MP, Minister for Population, Cities and Urban Infrastructure
for the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
ATTACHMENT C
Details of the Home Affairs Legislation Amendment (2020 Measures No. 1) Regulations 2020
This section provides that the name of the instrument is the Home Affairs Legislation Amendment (2020 Measures No. 1) Regulations 2020.
Section 2 - Commencement
This section provides for the commencement of the instrument.
Sections 1 to 4, and anything in the instrument that is not covered by the table, commence the day after the instrument is registered.
Schedule 1 commences on 1 July 2020 to coincide with the updating of the relevant instruments incorporated by reference.
Schedules 2 and 3 commence on 29 March 2020 to align with the roll-out of changes to the relevant Departmental systems.
Section 3 - Authority
This section provides that the instrument is made under the Australian Citizenship Act 2007 (the Citizenship Act) and the Migration Act 1958 (the Migration Act).
Section 4 - Schedules
This section provides for how the amendments in these Regulations operate.
Schedule 1 - Payment of citizenship fees
Australian Citizenship Regulation 2016
Item [1] - subsection 16(7)
This item repeals and substitutes subsection 16(7) of the Australian Citizenship Regulation 2016 (the Citizenship Regulation), which defines the terms 'conversion instrument' and 'places and currencies instrument'.
Definition of 'conversion instrument'
This item substitutes the definition of 'conversion instrument' in subsection 16(7) of the Citizenship Regulation with 'conversion instrument means the Migration (LIN 20/003: Payment of Visa Application Charges and Fees in Foreign Currencies) Instrument 2020 as in force on 1 July 2020'.
The definition of 'conversion instrument' is being amended to incorporate by reference a new instrument titled Migration (LIN 20/003: Payment of Visa Application Charges and Fees in Foreign Currencies) Instrument 2020. This instrument, made under paragraph 5.36(1A)(a) of the Migration Regulations 1994 (the Migration Regulations), commences on 1 July 2020 and replaces the Migration (LIN 20/001: Payment of Visa Application Charges and Fees in Foreign Currencies) Instrument 2020.
The conversion instrument sets out the exchange rates to be used for specified foreign currencies in relation to the payment of fees. This instrument is relevant to the Citizenship Regulation because, once incorporated by reference, it allows a person who makes an application under the Citizenship Act to pay an application fee in a foreign currency at an exchange rate specified in the conversion instrument (see subsection 16(4) of the Citizenship Regulation).
Definition of 'places and currencies instrument'
This item also substitutes the definition of 'places and currencies instrument' in subsection 16(7) of the Citizenship Regulation with 'places and currencies instrument means the Migration (LIN 20/004: Places and Currencies for Paying of Fees) Instrument 2020 as in force on 1 July 2020'.
The definition of 'places and currencies instrument' is being amended to incorporate by reference a new instrument titled Migration (LIN 20/004: Places and Currencies for Paying of Fees) Instrument 2020. This instrument, made under paragraphs 5.36(1)(a) and (b) of the Migration Regulations, commences on 1 July 2020 and replaces the Migration (LIN 20/002: Places and Currencies for Paying of Fees) Instrument 2020.
The places and currencies instrument sets out the places and currencies in which fees may be paid. This instrument is relevant to the Citizenship Regulation because, once incorporated by reference, it allows a person who makes an application under the Citizenship Act to pay an application fee in a place, and in the currency, that is specified in the places and currencies instrument (see subsections 16(2) and (3) of the Citizenship Regulation).
Purpose of amendments
Australian Government offices overseas routinely collect Australian citizenship application fees. The amendments made by this item ensure that applicants for Australian citizenship may make the payment of a citizenship application fee in a specified foreign country, and in a foreign currency, at a defined and updated exchange rate.
The conversion instrument and the places and currencies instrument are re-made every six months under the Migration Regulations, so that the content of the instruments can be updated to reflect changes in exchange rates, specified foreign currencies and the places where application fees may be paid. As a consequence, subsection 16(7) of the Citizenship Regulation must also be amended so that it refers to and incorporates the re-made instruments.
The Citizenship Act does not currently allow for the making of a legislative instrument under the Citizenship Regulation to specify matters in relation to the collection of application fees in foreign countries and foreign currencies. Instead, the Citizenship Regulation incorporates by reference relevant instruments made under the Migration Regulations to specify the foreign countries where a fee may be paid, the currency that can be accepted in each listed country and the currency exchange rate that must be applied.
The Migration (LIN 20/003: Payment of Visa Application Charges and Fees in Foreign Currencies) Instrument 2020 and the Migration (LIN 20/004: Places and Currencies for Paying of Fees) Instrument 2020 are both made under Part 5 of the Migration Regulations and are not subject to disallowance (see item 20(b), regulation 10 of the Legislation (Exemptions and Other Matters) Regulation 2015). These instruments are, therefore, incorporated in the Citizenship Regulation by these Regulations, as permitted by paragraph 14(1)(b) of the Legislation Act 2003 (the Legislation Act).
Due to the operation of paragraph 14(1)(b) and subsection 14(2) of the Legislation Act, the Citizenship Regulation may not make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force from time to time. Rather, the legislative instruments made under paragraphs 5.36(1A)(a), 5.36(1)(a) and 5.36(1)(b) of the Migration Regulations can only be incorporated as in force at the time of incorporation (being 1 July 2020).
Both the Migration (LIN 20/003: Payment of Visa Application Charges and Fees in Foreign Currencies) Instrument 2020 and the Migration (LIN 20/004: Places and Currencies for Paying of Fees) Instrument 2020 will be freely available online on the Federal Register of Legislation.
Item [2] - in the appropriate position in Part 4
This item inserts section 26 entitled 'Application of amendment made by Schedule 1 to the Home Affairs Legislation Amendment (2020 Measures No. 1) Regulations 2020'.
Section 26 provides that the amendment of section 16 made by Schedule 1 to the Regulations applies in relation to an application made on or after 1 July 2020.
Schedule 2 - Approving relevant assessing authorities
Item [1] - regulation 1.03
This item inserts three new defined terms in regulation 1.03 of the Migration Regulations. These terms are introduced into the Migration Regulations by amendments to regulation 2.26B - Relevant assessing authorities (see below for further details of the amendments to regulation 2.26B). Details of the new defined terms are:
Skills Assessment Department means the Department administered by the Skills Assessment Minister (see below).
Skills Assessment Minister means the Minister responsible for skills assessment services. In relation to the provisions in regulation 2.26B for approval of a person or body as a relevant assessing authority for a skilled occupation, this term replaces references to the Employment Minister and the Education Minister as the Ministers responsible for skills assessment services under previous Administrative Arrangements Orders (see further details of the amendments to regulation 2.26B, below). From 1 February 2020, the Minister having responsibility for skills assessment services is the Minister for Education, Skills and Employment. The wording of the new definition of Skills Assessment Minister ensures that the definition remains current, without requiring further amendments to the Migration Regulations, irrespective of any future changes to the name of the relevant Minister's portfolio.
Skills Assessment Secretary means the Secretary of the Skills Assessment Department (see above).
Item [2] - before subregulation 2.26B(1)
This item inserts a heading Specifying relevant assessing authorities before subregulation 2.26B(1) of the Migration Regulations. The new heading clarifies the operation of subregulation 2.26B(1), which provides for the Minister to specify, by an instrument in writing, a person or body as a relevant assessing authority for a skilled occupation, for the purposes of making an assessment of the occupational skills of an applicant for a skilled visa. Subregulation 2.26B(1) is subject to subregulation 2.26B(1A). See below for details of subregulation 2.26B(1A).
Item [3] - subregulation 2.26B(1A)
This item repeals subregulation 2.26B(1A) of the Migration Regulations, and substitutes new subregulations 2.26B(1A), 2.26B(1B) and 2.26B(1C). Details of the new subregulations are as follows:
New subregulation 2.26B(1A) provides that the Minister must not specify a person or body as a relevant assessing authority under subregulation 2.26B(1) unless the person or body has been approved as the relevant assessing authority for the occupation under new subregulation 2.26B(1B).
The repealed subregulation 2.26B(1A) required a person or body to be approved as a relevant assessing authority by the Education Minister or the Employment Minister before the Minister could specify the person or body in an instrument under subregulation 2.26B(1). The effect of the amended new subregulation 2.26B(1A) is to remove the references to the Education and Employment Ministers, which are replaced in new subregulation 2.26B(1B) with a reference to the Skills Assessment Minister. The provision is also restructured so that new subregulation 2.26B(1B) provides a discrete power to approve a person or body as a relevant assessing authority, to facilitate provision for the delegation of the power in new subregulation 2.26B(1C). See further details below.
New subregulation 2.26B(1B), under the heading Approving relevant assessing authorities, provides that the Skills Assessment Minister may, in writing, approve a person or body as the relevant assessing authority for a skilled occupation or for one or more countries. As noted above, the approval of the Skills Assessment Minister is required before the Minister may specify a person or body as a relevant assessing authority under subregulation 2.26B(1A).
There is no provision for merits review of a decision by the Skills Assessment Minister to approve a person or body as a relevant assessing authority. The Administrative Review Council's guidance, What Decisions Should Be Subject to Merits Review?, advises that decisions to appoint a person to undertake a specified function should not generally be subject to merits review. Therefore, by extension, provision for merits review of a decision to approve a person or body as the relevant assessing authority based on that person's or body's particular expertise or understanding of the occupational skills being assessed would not be appropriate.
New subregulation 2.26B(1C) provides that the Skills Assessment Minister may, in writing, delegate his or her power under subregulation 2.26(1B) to the Secretary of his or her Department, or to an SES employee (or acting SES employee) in his or her Department who has responsibilities relating to skills assessment services. This provision allows the Skills Assessment Minister to delegate his or her power where performance of the function acting personally would add to the Minister's workload unnecessarily. The delegation power is limited in both its scope and in the categories of persons to whom the delegation may be made. This ensures that delegations are appropriate.
The amendments further clarify the operation of regulation 2.26B by adding the heading Standards against which skills are assessed before the existing subregulations 2.26B(2) and (3), to describe the purpose of those subregulations.
Item [4] - in the appropriate position in Schedule 13
This item inserts a new Part 89 (Amendments made by the Home Affairs Legislation Amendment (2020 Measures No. 1) Regulations 2020) in Schedule 13 (Transitional arrangements) to the Migration Regulations.
New Part 89 has one clause, 8901 - Operation of Schedule 2. The purpose of new clause 8901 is to clarify how the amendments made by Schedule 2 to these Regulations are intended to operate in relation to an approval of a person or body as a relevant assessing authority for an occupation made before 29 March 2020.
Clause 8901 provides that an approval made prior to the commencement of the Regulations, under subregulation 2.26B(1A), has effect on and after 29 March 2020 as if it were an approval, made under new subregulation 2.26B(1B), of that person or body as the relevant assessing authority:
* for that occupation; and
* for all countries.
The purpose of clause 8901 is to ensure continuity of approvals given before the Regulations commence.
Schedule 3 - Miscellaneous amendments
Migration Regulations 1994
Item [1] - paragraph 773.213(3)(sa) of Schedule 2
This item amends paragraph 773.213(3)(sa) in Subclass 773 (Border) of Schedule 2 to the Migration Regulations, by omitting the word 'visa' from the end of the paragraph.
Paragraph 773.213(3)(sa) was inserted by the Migration Amendment (New Skilled Regional Visas) Regulations 2019 on 16 November 2019, and intended to refer to Skilled Employer Sponsored Regional (Provisional) (Class PE). The word 'visa' was inadvertently added at the end of the paragraph and is now removed to make the reference in the paragraph consistent with all other references to visa classes in subregulation 773.213(3).