EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Immigration and Citizenship
Migration Amendment (Complementary Protection) Act 2011
Proclamation
Item 2 of the table in subsection 2(1) of the Migration Amendment (Complementary Protection) Act 2011 (the Act) provides for items 1 to 17 of Schedule 1 to the Act to commence on a single day to be fixed by Proclamation. However, if any of the provisions of Schedule 1 do not commence within the period of six months beginning on the day the Act receives the Royal Assent, then those provisions commence on the day after the end of that six month period. The Act received the Royal Assent on 14 October 2011.
The purpose of the Proclamation is to fix 24 March 2012 as the day on which
items 1 to 17 of Schedule 1 to the Act commence.
Schedule 1 contains the operative provisions of the Act which amends the Migration Act 1958 to introduce greater efficiency, transparency and accountability into Australia’s arrangements for adhering to its non-refoulement obligations under relevant human rights instruments which Australia is a party to.
The Proclamation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Overview
The Migration Amendment (Complementary Protection) Act 2011 was enacted to address the need for enhanced efficiency, transparency, and accountability in Australia’s processes for fulfilling its non-refoulement obligations under international human rights instruments. This Act was passed by the Australian Parliament and received Royal Assent on 14 October 2011. The Act aims to amend the Migration Act 1958 to ensure that Australia better adheres to its commitments under relevant human rights treaties. The Explanatory Statement indicates that the provisions of Schedule 1, which contain the operative amendments, are set to commence on 24 March 2012, as determined by a Proclamation issued under the Act. This legislative instrument is governed by the Legislative Instruments Act 2003. The overarching policy objective of the Act is to refine Australia's mechanisms for protecting individuals who do not qualify for refugee status but are nonetheless at risk of significant harm if returned to their country of origin.
Scope and Application
The Migration Amendment (Complementary Protection) Act 2011 applies to individuals and entities involved in the migration process within Australia, including those seeking protection under non-refoulement obligations. This Act amends the Migration Act 1958 to enhance the efficiency, transparency, and accountability of Australia’s arrangements for fulfilling its obligations under international human rights instruments. The legislation applies nationally, covering all states and territories within Australia, and it is enacted under Commonwealth authority. The Act’s provisions are set to commence on 24 March 2012, as fixed by the Proclamation, with a fallback date of six months from Royal Assent if not proclaimed within that period. Any subordinate instruments extending or restricting the application of the Act would be subject to the Legislative Instruments Act 2003, ensuring compliance with established legislative frameworks. The Act does not specify any exclusions or exemptions, meaning its provisions apply broadly to all relevant persons and entities unless otherwise determined by subsequent legislative instruments.
Key Provisions
The Migration Amendment (Complementary Protection) Act 2011, as proclaimed on 24 March 2012, encompasses significant changes to the Migration Act 1958 (sections 1-17). These changes are designed to enhance efficiency, transparency, and accountability in Australia’s compliance with its non-refoulement obligations under relevant international human rights agreements. The Act ensures that any provisions not commencing within six months of Royal Assent will take effect on the day following this period, which was on 14 April 2012, as the Act received Royal Assent on 14 October 2011.
The primary obligations imposed by the Act on relevant parties and entities include ensuring compliance with Australia’s international obligations regarding non-refoulement. This involves careful consideration and assessment of refugee claims, ensuring that individuals are not returned to a country where they face serious harm. The Act requires the Department of Immigration and Border Protection to adopt specific procedures that facilitate the assessment of complementary protection claims, ensuring these are conducted in a timely and fair manner. These procedures must be transparent, enabling individuals to understand the process and criteria being applied to their claims.
Breaches of the provisions set out in the Act can lead to significant consequences. The Migration Act 1958 includes various offences and penalties for non-compliance, including administrative penalties and potential criminal charges. For instance, knowingly making a false statement in support of a visa application can result in a penalty of up to 10,000 Australian dollars or imprisonment for up to five years, or both. Additionally, the Act may result in the cancellation of visas and the potential for removal from Australia for those who do not comply with its requirements. These penalties underscore the seriousness with which the Australian government views compliance with its international obligations and the integrity of its immigration processes.