Migration Amendment Regulations 2001 (No. 12) 2001 No. 291
EXPLANATORY STATEMENT
STATUTORY RULES 2001 No. 291
Issued by the Authority of the Minister for Immigration and Multicultural Affairs
Migration Act 1958
Migration Amendment Regulations 2001 (No. 12)
Section 504 of the Migration Act 1958 (the Act) 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, regulations may be made pursuant to the following regulation-making powers which are inserted in the Act by the Migration Legislation Amendment Act (No. 1) 2001:
• subparagraph 486B(7)(a)(i) of the Act provides that the regulations may set out a definition of "family" for the purposes of paragraph 486B(7)(a) of the Act. Section 486B restricts the occurrences of multiple parties in certain migration proceedings in the High Court or the Federal Court, and subsection 486B(7) makes exceptions to this; and
• paragraph 486B(7)(d) of the Act allows the regulations to prescribe other people in relation to whom exceptions can be made.
The purpose of the Regulations is to amend. the Migration Regulations 1994 (the Regulations) to define "family" for the purposes of subparagraph 486B(7)(a)(i) of the Act, and to prescribe other people who are not prevented from being involved in a migration proceeding, pursuant to paragraph 486B(7)(d) of the Act.
Details of the Regulations are set out in the Attachment.
The Regulations commence on the commencement of Part 2 of Schedule 1 to the Migration Legislation Amendment Act (No. 1) 2001.
Attachment
Regulation 1 - Name of Regulations
This regulation provides that these Regulations are the Migration Amendment Regulations 2001 (No. 12).
Regulation 2 - Commencement
This regulation provides that these Regulations commence on the commencement of Part 2 of Schedule 1 to the Migration Legislation Amendment Act (No. 1) 2001.
Regulation 3 - Amendment of Migration Regulations 1994
This regulation provides that Schedule 1 to these Regulations amends the Migration Regulations 1994.
Schedule 1 - Amendments
Item [1] - After Division 5.7
This item inserts new Division 5.8, entitled "Multiple parties in migration litigation", after Division 5.7 in Part 5 of the Regulations.
New regulation 5.43 contains a definition of "family" for the purposes of proposed new paragraph 486B(7)(a) of the Act, pursuant to proposed new subparagraph 486B(7)(a)(i) of the Act. This new regulation provides that "family", for proposed new paragraph means:
• the spouse of an applicant involved in a migration proceeding (see the definition of 'spouse' in regulation 1.15A); or
• dependent children of an applicant involved in a migration proceeding (see definition of 'dependent child' in regulation 1.03).
New regulation 5.44 prescribes the legal personal representative of a person who has a serious physical or mental incapacity and who is an applicant in a migration proceeding, or a member of the family of the applicant, pursuant to paragraph 486B(7)(d) of the Act.
A "legal personal representative" is intended to be a person with legal authority to make decisions or to take legal actions on behalf of the person with the incapacity me above.
Overview
The Migration Amendment Regulations 2001 (No. 12), enacted under the authority of the Migration Act 1958, aim to address the need for precise definitions and exceptions regarding parties involved in migration proceedings, particularly under the circumstances of multiple parties and incapacitated individuals. This legislative amendment was introduced to provide clarity and operational guidance on who can be involved in migration proceedings when exceptions to the rule restricting multiple parties are warranted. The policy objective is to ensure that migration proceedings are conducted with appropriate legal representation and that the rights of individuals, including those with disabilities, are protected. These regulations are made pursuant to specific powers granted by the Migration Legislation Amendment Act (No. 1) 2001 and aim to refine the definition of "family" and specify other individuals who may be involved in such proceedings, thus ensuring that the legislative framework effectively supports the administration of justice in migration cases.
Scope and Application
The Migration Amendment Regulations 2001 (No. 12) pertains to the amendment of the Migration Regulations 1994 in order to define the term "family" for the purposes of restricting multiple parties in certain migration proceedings. Specifically, it applies to the spouse and dependent children of an applicant involved in migration litigation. Additionally, the Regulations prescribe other people who are not prevented from being involved in such proceedings, such as the legal personal representative of a person with a serious physical or mental incapacity who is either an applicant or a family member. The Regulations apply to all persons involved in migration proceedings, including applicants, their families, and legal representatives. The geographic and jurisdictional reach of the Regulations is national, as they are made under the Commonwealth's authority pursuant to the Migration Act 1958. The Regulations do not specify any exclusions or exemptions, but they do establish thresholds for what constitutes "family" and "legal personal representative" for the purposes of the Act. The application of the Regulations may be further extended or restricted through subordinate instruments.
Key Provisions
The Migration Amendment Regulations 2001 (No. 12) serve to amend the Migration Regulations 1994, introducing specific definitions and provisions regarding family and legal personal representatives in the context of migration litigation. Regulation 5.43 (Regulation 2, Schedule 1, Item [1]) defines "family" for the purposes of proposed new paragraph 486B(7)(a) of the Migration Act 1958. According to this regulation, "family" includes the spouse of an applicant involved in a migration proceeding, as well as the dependent children of such an applicant. These definitions are intended to clarify who is considered part of the family in the context of migration litigation.
The Regulations impose obligations on migration proceedings by providing clear definitions and stipulations that limit the involvement of certain parties in such proceedings. Specifically, Regulation 5.44 (Regulation 2, Schedule 1, Item [1]) outlines the role of a "legal personal representative" in migration proceedings. A legal personal representative is defined as a person with the legal authority to make decisions or take legal actions on behalf of someone who has a serious physical or mental incapacity. This includes applicants in migration proceedings or members of their family.
Breaching the provisions set forth in the Migration Amendment Regulations 2001 (No. 12) can result in various consequences. While the Explanatory Statement does not detail specific penalties for breaches, it is important to note that any failure to comply with the defined roles and involvements in migration proceedings could potentially lead to legal challenges or disputes. Additionally, the Migration Act 1958 and related regulations provide for a range of penalties for non-compliance, which could include fines and other legal repercussions. The exact penalties would depend on the specific nature of the breach and the relevant provisions of the Migration Act 1958.