EXPLANATORY STATEMENT
Issued by the Minister for Immigration and Multicultural Affairs
Migration Act 1958
Migration Amendment (Status of Forces Agreement—Fiji and Timor‑Leste) Amendment Regulations 2024
The Migration Act 1958 (the 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 Act provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Act.
Subsection 33(1) of the Act provides that Special Purpose Visas (SPVs) be a class of temporary visas to travel to, enter, and remain in Australia. Under subparagraph 33(2)(a)(ii) of the Act, a non-citizen is taken to have been granted an SPV if the non-citizen is a member of a class of persons that has a prescribed status.
The purpose of the Migration Amendment (Status of Forces Agreement—Fiji and Timor‑Leste) Amendment Regulations 2024 (the Amendment Regulations) is to amend the Migration Amendment (Status of Forces Agreement—Fiji and Timor-Leste) Regulations 2023 (the SOFA Regulations) to provide appropriate flexibility for the Schedules to the SOFA Regulations to commence when the Agreements covered by the SOFA Regulations come into force for Australia. The Amendment Regulations achieve this by amending the commencement provisions of the SOFA Regulations to omit a provision that would result in the SOFA Regulations not commencing if entry into force does not occur within the period of 18 months beginning on 21 February 2023 (when the SOFA Regulations were registered on the Federal Register of Legislation). These amendments also align the commencement provisions with other legislation related to these Agreements, including the Customs Legislation Amendment (Australia—Timor-Leste Defence Cooperation Agreement) Regulations 2024.
On 20 October 2022, the Agreement Between the Government of Australia and the Government of the Democratic Republic of Timor‑Leste on Cooperation in the Field of Defence and the Status of Visiting Forces (the Timor‑Leste Agreement) was signed by Minister for Defence, the Hon. Richard Marles MP, and the former Minister for Defence of Timor‑Leste, Brigadier General (rtd) Filomeno da Paixao de Jesus. On 3 August 2023, the Joint Standing Committee on Treaties (JSCOT) recommended the Australian Government ratify this Agreement.
On 7 September 2022, the Agreement Between the Government of Australia and the Government of the Republic of Fiji on Cooperation in the Field of Defence and the Status of Visiting Forces (the Fiji Agreement) was signed by Minister for Defence, the Hon Richard Marles MP, and the former Fijian Minister for Defence, National Security, and Policing, and Minister for Agriculture, Rural & Maritime Development, and Natural Disaster Management the Hon. Inia Seruiratu.
The Agreements provide a framework governing the legal status of the visiting force of one Party to the Agreement while present in the territory of the other for the purpose of a mutually determined cooperative activity. Article 4(1) and (2) of Annex 1 of the Timor‑Leste Agreement and Article 7(1) and (2) of the Fiji Agreement outline the Conditions of Entry and Departure. The respective Articles provide that visiting force personnel, civilian component members, and dependants to be granted a Special Purpose Visa to enter Australia and to carry out duties defined by Movement Orders issued by the Fijian Military and the Timor-Leste Military.
The Schedules to the SOFA Regulations amend the Migration Regulations 1994 to implement each of the Agreements. These Schedules commence on the later of the day after registration or the day after the relevant Agreements enter into force for Australia. However, the commencement provision in the current SOFA Regulations also provides that the amendments will not commence at all if the entry into force does not occur within 18 months beginning on the day of registration (21 February 2023). The Amendment Regulations remove the 18-month conditional time constraint for the SOFA Regulations’ commencement, to allow appropriate flexibility for the signatories to bring the Agreements into force at a mutually convenient time. To ensure there is then also clarity in relation to the day on which the Amendment Regulations commence, the Amendment Regulations also include a requirement that the Minister give written notice of the treaties’ entry into force by notifiable instrument. This would ensure that there is sufficient flexibility for the current SOFA Regulations, as amended, to commence when entry into force occurs (as agreed between the parties and subsequently notified by the Minister to confirm the commencement date of the Amendment Regulations).
A Statement of Compatibility with Human Rights (the Statement) has been prepared in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011, and is set out at Attachment A.
The Office of Impact Analysis (OIA) has assessed that the Regulations do not trigger the Australian Government Impact Analysis Requirements. The OIA reference number is: OIA24‑07825.
The Department of Defence led on negotiations with Timor‑Leste and Fiji on the original Agreements in consultation with the Department of Home Affairs. The Department of Foreign Affairs and Trade facilitated discussions throughout the process of negotiations. Both Agreements were subject to public consultation as part of the parliamentary reviews by the JSCOT. The JSCOT sought submissions from the public after each Agreement was tabled, with submissions received accessible on the JSCOT website (https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Treaties).
The JSCOT has recommended treaty binding action be taken with respect to the Timor‑Leste Agreement, and is considering its recommendations with respect to the Fiji Agreement.
While public consultation was not conducted on the minor and technical amendments made by the Amendment Regulations, the Department of Home Affairs consulted with the Department of Defence in relation to the amended commencement provisions. Consultation by the Department of Defence with parties to each Agreement underpins the approach to the SOFA Regulations and the Amendment Regulations.
The Amendment Regulations commence on the day after the instrument is registered on the Federal Register of Legislation.
Details of the Amendment Regulations are set out in Attachment B.
The Amendment Regulations are exempt from sunsetting under table item 1 of section 11 of the Legislation (Exemptions and Other Matters) Regulation 2015 as they solely give effect to an international obligation of Australia pursuant to the Agreements.
The Amendment Regulations amend the Migration Regulations, which are exempt from sunsetting under table item 38A of section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015. The Migration Regulations are exempt from sunsetting on the basis that the repeal and remaking of the Migration Regulations:
- is unnecessary as the Migration Regulations are regularly amended numerous times each year to update policy settings for immigration programs;
- would require complex and difficult to administer transitional provisions to ensure, amongst other things, the position of the many people who hold Australian visas, and similarly, there would likely be a significant impact on undecided visa and sponsorship applications; and
- would demand complicated and costly systems, training and operational changes that would impose significant strain on Government resources and the Australian public for insignificant gain, while not advancing the aims of the Legislation Act.
The Amendment Regulations are a disallowable legislative instrument for the purposes of the Legislation Act 2003.
ATTACHMENT A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration Amendment (Status of Forces Agreement—Fiji and Timor-Leste) Amendment Regulations 2024
This disallowable Legislative Instrument 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 purpose of the Migration Legislation Amendment (Commencement of Status of Forces Agreement—Fiji and Timor‑Leste) Regulations 2024 is to amend the Migration Regulations 1994 by amending the commencement provisions of the Migration Amendment (Status of Forces Agreement‑Fiji and Timor‑Leste) Regulations 2023 (SOFA Regulations).
The SOFA Regulations give effect to the Agreement Between Australia and Fiji Concerning the Facilitation of Reciprocal Access and Cooperation Between the Australian Defence Force and the Fijian Armed Forces which was signed on 20 October 2022 and the Agreement Between Australia and Timor‑Leste Concerning the Facilitation of Reciprocal Access and Cooperation Between the Australian Defence Force and the Timor‑Leste Armed Forces which was signed on 7 September 2022. The SOFA Regulations confirm that neither Agreement can enter into force until all domestic arrangements within signatory countries to give effect to the respective Agreements are in place. The 18 month conditional commencement timing clause in the SOFA Regulations in effect requires that, for the SOFA Regulations to commence, each of the Agreements with Fiji and Timor-Leste enter into force before 20 August 2024, or Schedule 1 and 2 to the SOFA Regulations will not commence at all. The SOFA Regulations were registered on 21 February 2023, and without the amendment to remove the 18-month limit, would in effect never commence if the 18-month period elapses before entry into force occurs.
The Migration Legislation Amendment (Commencement of Status of Forces Agreement—Fiji and Timor-Leste) Regulations 2024 achieve this by removing the 18 month conditional commencement timing clause under both item 2 of the table to subsection 2(1) and Schedule 2 of the SOFA Regulations. This would also allow appropriate flexibility for the signatories to bring the Agreements into force at a mutually convenient time. A new clause will also be included to enable the Minister to announce, by notifiable instrument, the day the Agreements enter into force for Australia.
Human rights implications
This Disallowable Legislative Instrument engages the following right:
the right to work in Article 6(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR).
Right to work
This Disallowable Legislative Instrument engages Article 6(1) of the ICESCR. Article 6(1) states:
The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.
This Disallowable Legislative Instrument may positively engage the right to work of Fijian and Timor-Leste armed forces personnel deployed to Australia under the Status of Forces Agreement (SOFA) by ensuring the Amendment Regulations, which enable the domestic implementation process to take place, do not automatically self-repeal, leaving a gap in that process. Successful completion of the domestic implementation process and the coming into effect of the SOFAs will allow Fijian and Timor‑Leste armed forces personnel to work as visa holders in line with their official duties under the SOFA.
Conclusion
The Disallowable Legislative Instrument is compatible with human rights.
The Hon Tony Burke MP
Minister for Immigration and Multicultural Affairs
ATTACHMENT B
Details of the Migration Amendment (Status of Forces Agreement—Fiji and Timor-Leste) Amendment Regulations 2024
Section 1 – Name of Regulations
This section provides that the name of the instrument is the Migration Amendment (Status of Forces Agreement—Fiji and Timor-Leste) Amendment Regulations 2024 (the Amendment Regulations).
Section 2 – Commencement
This section provides for the whole of the instrument to commence on the day after the instrument is registered on the Federal Register of Legislation.
Section 3 – Authority
This section provides that the instrument is made under the Migration Act 1958 (the Migration Act).
Section 4 – Schedules
This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
The instrument that is amended is the Migration Amendment (Status of Forces Agreement—Fiji and Timor‑Leste) Regulations 2023 (the SOFA Regulations).
Schedule 1 – Amendments
Migration Amendment (Status of Forces Agreement—Fiji and Timor‑Leste) Regulations 2023
Item [1] – Section 2 (table item 2, column 2)
This item omits all the words after “occur”. This removes the clause providing for a period of 18 months constraining the commencement of the amendments contained within Schedule 1 to the SOFA Regulations if entry into force does not occur within that 18-month period. Schedule 1 to the SOFA Regulations implements the Agreement Between the Government of Australia and the Government of the Republic of Fiji on Cooperation in the Field of Defence and the Status of Visiting Forces (the Fiji Agreement).
Item [2] – Section 2 (at the end of the cell at table item 2, column 2)
This item amends the SOFA Regulations to provide that the Minister must announce the day on which the Fiji Agreement enters into force for Australia by notifiable instrument. The making of a notifiable instrument provides certainty regarding the time at which the Fiji Agreement enters into force.
That instrument is not legislative in character, and is declared by the Amendment Regulations to be a notifiable instrument for the purposes of the Legislation Act 2003 (Legislation Act) to ensure it is still required to be made publicly available on Federal Register of Legislation (the Register). Notifiable instruments are governed by the Legislation Act.
In 2024, the text of the Fiji Agreement can be viewed free of charge on the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
Item [3] – Section 2 (table item 3, column 2)
This item omits all the words after “occur”. This removes the clause providing for a period of 18 months constraining the commencement of the amendments contained within Schedule 2 to the SOFA Regulations if entry into force does not occur within that 18-month period. Schedule 2 to the SOFA Regulations implements the Agreement Between the Government of Australia and the Government of the Democratic Republic of Timor-Leste on Cooperation in the Field of Defence and the Status of Visiting Forces (the Timor‑Leste Agreement).
Item [4] - Section 2 (at the end of the cell at table item 3, column 2)
This item amends the SOFA Regulations to provide that the Minister must announce the day on which the Agreement enters into force for Australia by notifiable instrument. The making of a notifiable instrument provides certainty regarding the time at which the Timor‑Leste Agreement enters into force.
That instrument is not legislative in character, and is declared by the Amendment Regulations to be a notifiable instrument for the purposes of the Legislation Act to ensure it is still required to be made publicly available on the Register. Notifiable instruments are governed by the Legislation Act.
In 2024, the text of the Timor‑Leste Agreement can be viewed free of charge on the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).