EXPLANATORY STATEMENT
Select Legislative Instrument No.
Issued by the Minister for Immigration and Border Protection
Migration Act 1958
Migration Amendment (Review of the Regulations) Regulation 2016
The Migration Act 1958 (the Migration Act) relates 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 all matters which by the Migration 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 Migration Act.
The Migration Amendment (Review of the Regulations) Regulation 2016 (the Regulation) amends the Migration Regulations 1994 (the Migration Regulations) to introduce a new statutory review process into the Migration Regulations. The new provision requires the Department of Immigration and Border Protection to conduct periodic reviews of the Migration Regulations to:
- commence the initial review within one year after 1 July 2017 and finish it within two years after the day the review begins; and
- commence a subsequent review every 10 years after 1 October 2017 and finish each review within two years after commencement of the review.
The purpose of the review requirement is to ensure that the Migration Regulations are kept up to date and provisions are in force for so long as they are needed. In this way, the Regulation provides a rigorous integrity measure to ensure the Migration Regulations are examined, and determined fit for purpose, on a regular and ongoing basis. Specifically, this ensures that the Migration Regulations remain subject to ongoing monitoring for their impact and relevance, while also benefitting from appropriate deregulation, including the removal of unnecessary, confusing or outdated provisions.
A Statement of Compatibility with Human Rights (Statement) has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The Statement’s overall assessment is that the Regulation is compatible with human rights as it does not engage any rights articulated in the seven core human rights treaties. A copy of the Statement is at Attachment A.
Details of the Regulation are set out in Attachment B.
The Migration Act specifies no conditions that need to be satisfied before the power to make the Regulation may be exercised.
The Office of Best Practice Regulation (OBPR) was consulted in relation to the amendments. OBPR advised that the amendment appears to be machinery in nature and that no further action was required. The OBPR consultation reference is 21319.
No further consultation was considered to be appropriate. The review requirement will be an internal departmental process, and any legislative changes to be made following the reviews would be subject to consultations as appropriate. This accords with subsection 17(1) of the Legislation Act 2003 which envisages consultations where appropriate and reasonably practicable.
The Regulation is a legislative instrument for the purposes of the Legislation Act 2003.
The Regulation commences on the day after the instrument is registered.
ATTACHMENT A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration Amendment (Review of the Regulations) Regulation 2016
This Disallowable Legislative Instrument, titled the Migration Amendment (Review of the Regulations) Regulation 2016 (the Review Regulation), 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 Disallowable Legislative Instrument
The Review Regulation will insert a periodic review requirement for the Secretary of the Department of Immigration and Border Protection to review the Migration Regulations 1994 (the Migration Regulations). The Review Regulation will ensure that the Migration Regulations are kept up to date and that the provisions are in force for so long as needed.
The Secretary, according to the proposed amendment, will commence a review of the Migration Regulations within one year after 1 July 2017 and commence a further review every ten years from 1 October 2018. Each review must be completed within two years after its commencement.
Human rights implications
The Review Regulation does not engage any of the applicable rights or freedoms.
Conclusion
The Review Regulation is compatible with human rights as it does not raise any human rights issues.
ATTACHMENT B
Details of the Migration Amendment (Review of the Regulations) Regulation 2016
Section 1 – Name
This section provides that the name of the Regulation is the Migration Amendment (Review of the Regulations) Regulation 2016 (the Regulation).
Section 2 – Commencement
The purpose of this section is to provide for when the amendments to the Migration Regulations 1994 (the Migration Regulations) made by the Regulation commence.
The whole of the Regulation will commence on the day after the instrument is registered.
Section 3 – Authority
This section provides that the Regulation is made under the Migration Act 1958 (the Migration Act).
The purpose of this section is to set out the Act under which the Regulation is made.
Section 4 – Schedules
This section provides that each instrument that is specified in a Schedule to the Regulation is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Regulation has effect according to its terms.
The purpose of this section is to provide for how the amendments in the Regulation operate. The Schedule to the Regulation amends the Migration Regulations.
Schedule 1 – Amendments
Migration Regulations 1994
Item 1 – After Division 5.8
This item inserts a new Division 5.8A – Review of these Regulations – in the Migration Regulations.
The purpose of the new Division is to insert a statutory requirement to review the Migration Regulations. This is to ensure that the Migration Regulations are kept up to date and provisions are in force for so long as they are needed.
Subregulation 5.44A(1) provides that the Secretary of the Department of Immigration and Border Protection must ensure that there is a review of the operation of the Migration Regulations.
Subregulation 5.44A(2) provides for when the first of these reviews must take place. Specifically, this first review must start in the 2017/18 financial year, and be completed within two years after it begins.
Subregulation 5.44A(3) requires ongoing 10 yearly reviews of the Migration Regulations, following the initial review mentioned in 5.44A(2) above. The effect of subregulation 5.44A(3) is that the first of these 10 yearly reviews is required to start as soon as possible after 1 October 2027. This subregulation also requires that each 10 year review be completed within two years after it begins.