Migration (1993) Regulations (Amendment) 1993 No. 29
EXPLANATORY STATEMENT STATUTORY RULES 1993 No. 29
Issued by the Authority of the Minister for Immigration, Local Government and Ethnic Affairs
Migration Act 1958
Migration (1993) Regulations (Amendment)
Section 181 of the Migration Act 1958 (the Act) provides that the Governor-General may make regulations for the purposes of the Act. In addition section 166JF of the Act provides for the remuneration of full-time members of the Refugee Review Tribunal.
In addition, the Migration (Laws) Amendment Act (No. 2) 1992 inserts a new subsection 4(1A) into the Act, commencing on 1 March 1993. Paragraph 4(1A)(b) will provide that the regulations may provide for what will be accepted as evidence of the person's English language proficiency.
Subsection 4(1) of the Acts Interpretation Act 1901 provides that where an amending Act amends a principal Act in such a way that the principal Act will confer power to make regulations then the power may be exercised before the amendments come into operation as if they had come into operation. The purpose of the Regulations is:
in regulation 1, to provide for regulation 3 to commence on 1 March 1993. This is the day on which the amendment inserting subsection 4(1A) into the Act commences and therefore is in accordance with the requirements of subsection 4(2) of the Acts Interpretation Act 1901. This regulation also provides for regulation 4 to commence retrospectively on 8 February 1993. Retrospectivity is entirely beneficial and no person will be disadvantaged. Hence retrospectivity does not contravene subsection 48(2) of the Acts Interpretation Act 1901;
in regulation 3, to prescribe the evidence of a person's English language proficiency which a person must provide to satisfy the Minister that the person has functional English; and
in regulation 4, to insert a new regulation 7.20A into the Migration Regulations to raise the remuneration and allowances of the first full-time member of the Refugee Review Tribunal ("the Tribunal") - appointed with effect from 8 February 1993 - from the remuneration and allowances equal to the minimum remuneration and allowances payable to the holder of an SES office classified as SES Band 1, as provided for in subsection 166JF(1) of the Act, to the remuneration and allowances equal to the maximum remuneration and allowances payable to the holder of an SES office classified as SES Band 1. This increase is made having regard to the first full-time member's additional administrative responsibilities in setting up the Tribunal's
operations in Melbourne and in his proposed ongoing role in the management and administration of the Melbourne office of the Tribunal over and above. his role as a member of the Tribunal.
Overview
The Migration (1993) Regulations (Amendment) 1993 No. 29, issued under the authority of the Minister for Immigration, Local Government and Ethnic Affairs, amends the Migration Act 1958 and its regulations to address certain administrative and procedural gaps. This statutory instrument was enacted to ensure that the new provisions inserted by the Migration (Laws) Amendment Act (No. 2) 1992 could be effectively implemented. Specifically, the amendments introduce requirements for evidence of English language proficiency for migrants and adjust the remuneration for the first full-time member of the Refugee Review Tribunal, reflecting their increased responsibilities. The purpose of these regulations is to align the legislative framework with the new policy objectives and operational realities, ensuring that the legislative changes do not disadvantage any individuals and are implemented smoothly and effectively.
Scope and Application
The Migration (1993) Regulations (Amendment) 1993 No. 29 applies to the provisions of the Migration Act 1958, which governs the entry, stay, and departure of individuals in Australia. The regulations primarily affect persons seeking to migrate to Australia by determining the requirements for English language proficiency and the remuneration for full-time members of the Refugee Review Tribunal. The regulations also extend to the entities and industries involved in the processing and review of migration applications, as well as the conduct and transactions associated with these processes. Geographically, these regulations operate under the Commonwealth jurisdiction, affecting the entire nation. The regulations specify that they will not disadvantage any person, hence the retrospective commencement date does not contravene legal requirements. Any exclusions or exemptions are implicitly defined through the criteria set for English language proficiency and the remuneration structure for Tribunal members. The application and scope of these regulations may be further detailed or modified through subordinate instruments as necessary.
Key Provisions
The primary sections of the Migration (1993) Regulations (Amendment) 1993 No. 29 include regulations 1, 3, and 4, each serving distinct purposes under the Migration Act 1958. Regulation 1 sets the commencement date for the regulations, aligning with the effective date of the legislative amendments, ensuring that the regulations are applied in a timely manner as per the requirements of the Acts Interpretation Act 1901. Regulation 3 specifies the types of evidence that will be accepted as proof of a person's English language proficiency, thereby fulfilling the requirements introduced by the new subsection 4(1A) of the Act. Regulation 4, which comes into effect retrospectively, adjusts the remuneration and allowances of the first full-time member of the Refugee Review Tribunal, acknowledging their increased administrative responsibilities.
These regulations impose several obligations on relevant parties. Firstly, individuals seeking to meet the English language proficiency requirements must provide the prescribed evidence as outlined in regulation 3. This ensures that applicants can demonstrate their functional English ability, which is a critical component of their migration application. Additionally, the first full-time member of the Refugee Review Tribunal must accept the new remuneration and allowances as specified in regulation 4, reflecting the additional duties they are tasked with. The retrospective nature of this adjustment means that the member appointed from 8 February 1993 must adhere to these financial provisions.
Breach of the regulations or failure to comply with the stipulated requirements could have various consequences. While the explanatory statement does not explicitly outline criminal or civil penalties, non-compliance with the English language proficiency requirement could lead to the rejection of a migration application. For the Refugee Review Tribunal member, failing to accept the specified remuneration and allowances might result in legal disputes regarding their employment terms. Although the specific penalties are not detailed in the explanatory statement, it is reasonable to infer that non-compliance could lead to legal challenges or administrative actions to enforce adherence to the regulations.