ATTACHMENT A

 

AUTHORISING PROVISIONS

 

Subsection 504(1) of the Migration Act 1958 (the Act) relevantly provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

In addition, the following provisions may apply:

 

*         subsection 46(1) of the Act, which provides that, subject to subsections 46(1A), (2) and (2A), an application for a visa is valid if, and only if:

o   it is for a visa of a class specified in the application; and

o   it satisfies the criteria and requirements prescribed under this section; and

o   subject to the Regulations providing otherwise, any visa application charge that the Regulations require to be paid at the time when the application is made, has been paid; and

o   any fees payable in respect of it under the Regulations have been paid; and

o   it is not prevented by section 48 (visa refused or cancelled earlier), 48A (protection visa), 91E (CPA and safe third countries), 91K (temporary safe haven visa), 91P (non-citizens with access to protection from third countries), 161 (criminal justice), 164D (enforcement visa), 195 (detainees) or 501E (visa refused or cancelled on character grounds);

 

*         paragraph 71(3)(c) provides that, without limiting subsection (2), regulations made for the purposes of that subsection may specify a different amount of visa evidence charge for different methods of payment of the charge;

*         paragraph 71B(1)(b) provides that the regulations may make provision for, or in relation to, the method of payment (including the currency in which the charge must be paid) relating to the visa evidence charge;

*         subsection 140J(1) provides that if an amount is payable under the regulations by a person who is or was an approved sponsor in relation to a sponsorship obligation, the person is not liable to pay to the Commonwealth more than the lesser of: if a limit is prescribed by the regulations -- that limit; and the actual costs incurred by the Commonwealth;

 

*         subparagraph 504(1)(a)(i) provides for the charging and recovery of fees in respect of any matter under this Act or the regulations, including the fees payable in connection with the review of decisions made under this Act or the regulations, whether or not such review is provided for by or under this Act; and

*         subsection 504(2) provides that section 14 of the Legislative Instruments Act 2003 does not prevent, and has not prevented, regulations whose operation depends on a country or other matter being specified or certified by the Minister in an instrument in writing made under the regulations after the taking effect of the regulations.

 

 

ATTACHMENT B

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Migration Amendment (Credit Card Surcharge Additional Measures) Regulation 2014

 

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 Migration Amendment (Credit Card Surcharge Additional Measures) Regulation 2014 amends the Migration Regulations 1994 to introduce a credit card fee (surcharge). The surcharge applies to credit card payments made by clients when paying fees and charges of a kind specified by the Minister in a legislative instrument.

The surcharge is limited by the Reserve Bank of Australia (RBA) surcharging standards. The standards allow merchants to pass on the cost of credit and debit card transactions to customers via a surcharge. The surcharge is calculated based on the reasonable cost of acceptance methodology, which is defined by the RBA and limited to merchant service fees, system establishment costs and direct costs associated with point of sale terminals.

The surcharge does not apply to debit card payments.

Human rights implications

This Regulation does not engage any of the applicable rights or freedoms.

 

Conclusion

This Regulation is compatible with human rights as it does not raise any human rights issues.

 

The Hon Scott Morrison MP, Minister for Immigration and Border Protection

 

 

ATTACHMENT C

 

 

Details of the Migration Amendment (Credit Card Surcharge Additional Measures) Regulation 2014

 

Section 1 - Name of Regulation

 

This section provides that the title of the Regulation is the Migration Amendment (Credit Card Surcharge Additional Measures) Regulation 2014 (the Regulation).

 

Section 2 - Commencement

 

This section provides that the Regulation commences immediately after the commencement of the Migration Legislation Amendment (2014 Measures No. 1) Regulation 2014.

 

The effect of section 2 is that the Regulation commences immediately after the commencement of the Migration Legislation Amendment (2014 Measures No. 1) Regulation 2014.  The Migration Legislation Amendment (2014 Measures No. 1) Regulation 2014 commences on 1 July 2014.  Section 2 therefore ensures that the items inserted by Schedule 1 of the Regulation are inserted on 1 July 2014 but after the items inserted by the Migration Legislation Amendment (2014 Measures No. 1) Regulation 2014.

 

The purpose of this section is to set out when the provisions commence.

 

Section 3 - Authority

 

This section provides that the Regulation is made under the Migration Act 1958 (the Act).

 

The purpose of this section is to set out the Act under which the Regulation is made.

 

Section 4 - Schedule(s)

 

This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

 

The purpose of this section is to provide for how the amendments in this Regulation operate.

 

Schedule 1 - Amendments

 

Item 1 - Subregulation 2.12JA(2) (note)

 

This item amends the note at subregulation 2.12JA(2) of the Migration Regulations 1994 (the Principal Regulations) to refer to regulation 5.41A.

 

This amendment is consequential to the amendment at item 2 below.

 

On 19 April 2014, item 2 of Schedule 1 to the Migration Amendment (Credit Card Surcharge) Regulation 2014 (SLI No 39 of 2014) inserted a new regulation 5.43 into the Principal Regulations at the end of Division 5.7 of Part 5. However, another regulation 5.43 existed at the beginning of Division 5.8 of Part 5 of the Principal Regulations.  As a consequence, there were two regulations numbered 5.43.  Item 2 of the Regulation (below) renumbers regulation 5.43 of Division 5.7 of Part 5 of the Principal Regulations to regulation 5.41A.

 

The purpose of this amendment is to ensure that the note refers to the correct, renumbered regulation.

 

Item 2 - Regulation 5.43 in Division 5.7 of Part 5

 

This item renumbers regulation 5.43 in Division 5.7 of Part 5 of the Principal Regulations as regulation 5.41A.

 

On 19 April 2014, item 2 of Schedule 1 to the Migration Amendment (Credit Card Surcharge) Regulation 2014 (SLI No 39 of 2014) inserted a new regulation 5.43 into the Principal Regulations, at the end of Division 5.7 of Part 5. However, another regulation 5.43 existed at the beginning of Division 5.8 of Part 5 of the Principal Regulations. As a consequence, there were two regulations numbered 5.43.

 

The effect of this amendment is to rename the duplicated provision number from 5.43 to 5.41A.

 

The purpose of this amendment is to ensure that the Regulations remain clear and easy to use.

 

Item 3 - Subregulations 5.43(1) to (3) in Division 5.7 of Part 5

 

This item repeals and substitutes the text of subregulations 5.43(1) to (3) of Division 5.7 of Part 5 of the Principal Regulations, which are renumbered subregulations 5.41A(1) to (3) (see item 2 above).

 

The purpose of this amendment is to allow the department to recover the cost of administrative fees charged to the department by credit card issuers and its banking service providers by imposing a credit card surcharge on a person who pays with a credit card a fee or charge of a kind specified by the Minister in a legislative instrument.  These administrative fees are charged to the department by credit card issuers and its banking service provider, and do not form part of the payment paid by the applicant.

 

New subregulation 5.41A(1)

 

This amendment provides that a person is liable to pay the credit card surcharge if the person pays a fee or charge, or part of a fee or charge, of a kind specified by the Minister in a legislative instrument made for paragraph 5.41A(1)(b) and the payment is made by credit card.

 

The purpose of this amendment is to require the person to pay the credit card surcharge each time a fee or charge of a kind specified by the Minister in a legislative instrument is paid by a credit card.  This fee or charge may be a one-off payment, part of a one-off payment, an instalment, or part of an instalment.

 

The amendment has the effect of requiring the person paying a fee or charge to pay the credit card surcharge in order to comply with paragraph 46(1)(c) of the Act, which provides that an application for a visa is only valid if any fees payable in respect of it under the Principal Regulations have been paid.

 

Section 504(2) of the Act authorises the making of paragraph 5.41A(1)(b) conferring a power on the Minister to specify the relevant kinds of fees or charges in an instrument in writing, including after the amendment regulation is made.

 

New subregulation 5.41A(2)

 

This amendment provides that the amount of the credit card surcharge payable is as follows:

 

*         for a payment made by Visa or MasterCard credit card--1.08% of the amount of the payment;

*         for a payment made by American Express or Japan Credit Bureau (JCB) credit card--1.99% of the amount of the payment;

*         for a payment made by Diners Club International credit card--2.91% of the amount of the payment.

 

The effect of this amendment is to set out the types of credit cards and their associated surcharge fees incurred by the payment of a fee or charge, or part of a fee or charge, of a kind specified by the Minister in a legislative instrument made for paragraph 5.41A(1)(b).

 

The purpose of this amendment is to set out the types of credit cards and their associated surcharge fees.

 

New subregulation 5.41A(3)

 

This amendment provides that the credit card surcharge is payable when the payment of the fee or charge is made.

 

The effect of this amendment is to require the applicant to pay a credit card surcharge at any time that the person pays a fee or charge, or part of a fee or charge, of a kind specified by the Minister in a legislative instrument made for paragraph 5.41A(1)(b) using a credit card.

 

The purpose of this amendment is to require the applicant to pay a credit card surcharge at any time that the person makes the payment of the fee or charge.

 

Item 4 - At the end of Schedule 13

 

This item adds Part 32 at the end of Schedule 13 to the Principal Regulations to deal with the transitional arrangements in respect of the amendments made by this Regulation.

 

The heading of new Part 32 is 'Amendments made by the Migration Amendment (Credit Card Surcharge Additional Measures) Regulation 2014'.

 

New clause 3201 provides that the amendments of the Principal Regulations made by Schedule 1 to the Migration Amendment (Credit Card Surcharge Additional Measures) Regulation 2014 apply in relation to the payment of a fee or charge on or after 1 July 2014.