EXPLANATORY STATEMENT
Issued by the Minister for Immigration and Multicultural Affairs
Migration Act 1958
Migration Amendment (Bridging Visa Conditions) Regulations 2024
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.
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. In addition, regulations may be made pursuant to the provisions listed in Attachment A.
The Migration Amendment (Bridging Visa Conditions) Regulations 2024 (the Amendment Regulations) amends the Migration Regulations 1994 (the Migration Regulations) to require the Minister to impose the following visa conditions when granting a Subclass 070 (Bridging (Removal Pending)) visa (BVR), if the Minister is satisfied on the balance of probabilities that the BVR holder poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence (with new definition to be inserted into 070.111) under any Australian law, and the Minister is satisfied that imposition of the below condition(s) is on the balance of probabilities, reasonably necessary, and reasonably appropriate and adapted for the purpose of protecting any part of the Australian community from serious harm by addressing that significant risk:
- condition 8621 (electronic monitoring);
- condition 8617 (financial circumstances reporting);
- condition 8618 (debt or bankruptcy reporting);
- condition 8620 (curfew).
The previous subclause 070.612A(1) of Schedule 2 to the Migration Regulations required the Minister to impose conditions 8621, 8617, 8618 and 8620 on a non-citizen who subclause 070.612A(3) of Schedule 2 applied to, unless the Minister was satisfied that it was not reasonably necessary to impose each conditions to protect any part of the Australian community.
On 6 November 2024, the High Court delivered their judgment on the matter of YBFZ v Citizenship and Multicultural Affairs & Anor [2024] HCA 40 (YBFZ) finding, by majority, that the imposition of each of the curfew and the monitoring conditions on a BVR is prima facie punitive and cannot be justified. It follows that the High Court held clause 070.612A(1)(a) and (d), as in force prior to the commencement of the Amendment Regulations, infringed Chapter III of the Constitution and were invalid.
As a result, the Amendment Regulations introduces a new community protection test to ensure that the Minister can only impose 8621, 8617, 8618 and 8620 conditions using a new confined and specific test listed in the Amendment Regulations, related to protecting any part of the Australian community from serious harm. . The new test requires consideration of risk of particular criminal conduct (serious offence) occurring and the nature, degree and extent of harm the BVR holder may pose to any part of the Australian community (poses a substantial risk).
The current Migration Regulations have been in place since 1994, when they replaced regulations…
Overview
The Migration Amendment (Bridging Visa Conditions) Regulations 2024, enacted by the Minister for Immigration and Multicultural Affairs, addresses a legislative gap identified by the High Court's ruling in YBFZ v Citizenship and Multicultural Affairs & Anor [2024] HCA 40. This ruling invalidated the previous conditions imposed on Subclass 070 (Bridging Removal Pending) visas, finding them to be prima facie punitive. The Regulations aim to align with constitutional standards by introducing a new community protection test for imposing visa conditions 8621 (electronic monitoring), 8617 (financial circumstances reporting), 8618 (debt or bankruptcy reporting), and 8620 (curfew) on BVR holders. This test requires the Minister to be satisfied on the balance of probabilities that the BVR holder poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence and that imposing the condition is reasonably necessary and reasonably appropriate for the purpose of protecting any part of the Australian community from serious harm. The policy objective is to ensure that the imposition of these conditions is limited to cases where it is necessary to mitigate significant risks to community safety, while also respecting the rights and freedoms of the individuals concerned.
Scope and Application
The Migration Amendment (Bridging Visa Conditions) Regulations 2024 amends the Migration Regulations 1994, which are subordinate instruments of the Migration Act 1958. The Act governs the entry into, and presence in, Australia of non-citizens. The Regulations apply to non-citizens who are holders of a Subclass 070 (Bridging (Removal Pending)) visa (BVR), which is granted to individuals who are required to be released from immigration detention, typically due to a lack of prospect of removal from Australia in the reasonably foreseeable future. The Regulations impose certain visa conditions on these BVR holders if specific criteria are met by the Minister for Immigration and Multicultural Affairs. These conditions include electronic monitoring, financial circumstances reporting, debt or bankruptcy reporting, and curfews. The Regulations introduce a new test that the Minister must apply when deciding to impose these conditions, ensuring that they are only imposed if the Minister is satisfied on the balance of probabilities that the BVR holder poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence, and that the imposition of the condition is reasonably necessary, appropriate, and adapted for protecting the community from serious harm. The Regulations also introduce a new definition of 'serious offence' and clarify the circumstances under which the visa conditions apply. The Regulations apply nationally across Australia and are subject to the provisions of the Migration Act and the Migration Regulations. They do not contain any specific exclusions or exemptions but are subject to the overarching principles and rights provided by the Australian Constitution and international human rights obligations.
Key Provisions
- The Migration Amendment (Bridging Visa Conditions) Regulations 2024 (the Amendment Regulations) introduce new conditions for the Subclass 070 (Bridging (Removal Pending)) visa (BVR) holders. These conditions, including electronic monitoring (condition 8621), financial circumstances reporting (condition 8617), debt or bankruptcy reporting (condition 8618), and curfew (condition 8620), must be imposed by the Minister if they are satisfied on the balance of probabilities that the BVR holder poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence, and that the imposition of the condition is reasonably necessary, appropriate, and adapted for the purpose of protecting any part of the Australian community from serious harm by addressing that substantial risk (Regulation 2). These new conditions aim to mitigate risks to the Australian community posed by BVR holders who are on a removal pathway but cannot remain in detention due to the lack of a real prospect of their removal being practicable in the reasonably foreseeable future.
- The Amendment Regulations impose specific obligations on the Minister to impose these conditions under certain circumstances. The Minister must consider whether the BVR holder poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence, defined as an offence punishable by imprisonment for life or for a period, or maximum period, of at least 5 years, and involving specific harmful conduct (Regulation 3). The Minister must also be satisfied on the balance of probabilities that the imposition of the condition is reasonably necessary, appropriate, and adapted for the purpose of protecting any part of the Australian community from serious harm by addressing that substantial risk.
- Failure to comply with these conditions constitutes an offence under the Migration Act 1958 (Migration Act), with specific penalties outlined. For conditions 8620 and 8621, there is a mandatory minimum term of imprisonment of one year upon conviction (section 76DA). Additionally, the maximum penalty for failure to comply with these conditions is five years imprisonment or 300 penalty units (sections 76C and 76D). These penalties reflect the seriousness of the offences and the need to protect community safety. Courts are also given discretion to consider individual circumstances and apply various factors in determining the appropriate sentence.
- The Amendment Regulations also address human rights considerations, ensuring that any limitations on rights are reasonable, necessary, and proportionate to the objective of community safety. The new community protection test requires the Minister to take into account the individual risks posed by a person before imposing the conditions, supported by recommendations from the Community Protection Board. The Regulations provide mechanisms for individuals to seek to have the conditions revoked or for a new BVR to be granted without those conditions if the risk diminishes or the conditions are no longer necessary.
- In summary, the Amendment Regulations mandate the Minister to impose specific visa conditions on BVR holders under stringent criteria, aiming to protect the Australian community from serious harm. These conditions, accompanied by specific penalties for non-compliance, are designed to ensure that any limitations on rights are proportionate and necessary to achieve the legitimate objective of community safety.
- Area of Law
- Immigration & Refugee Law
- Criminal Law
- Instrument
- Regulation
- Concepts
- Offence Provisions
- Enforcement Powers
- Reporting & Disclosure Obligations
- Transitional Provisions
- Delegated & Subordinate Legislation
- Prohibited Conduct
