EXPLANATORY STATEMENT
Migration Act 1958
Migration (Approved Activities) Instrument (LIN 20/053) 2020
(paragraph 235(7)(a) and paragraph 245AF(a))
- Instrument LIN 20/053 is made under paragraphs 235(7)(a) and 245AF(a) of the Migration Act 1958 (the Act).
- The Instrument repeals IMMI 10/019 (F2010L01570) made under paragraph 235(7)(a) and paragraph 245AF(a) of the Act and in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (the AIA). Subsection 33(3) of the AIA states that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character, the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
- Paragraph 235(3) of the Act provides that an unlawful non-citizen who performs work in Australia, whether for reward or otherwise, commits an offence. However, paragraph 235(7)(a) of the Act provides that ‘work’ for the purposes of section 235 of the Act does not include a voluntary activity performed by a detainee in immigration detention, if that activity is of a kind approved in writing by the Secretary. Further, paragraph 245AF(a) of the Act provides that no offence is committed where a person in immigration detention engages voluntarily in an activity of a kind approved in writing by the Secretary.
- The purpose of the instrument is to specify the approved activities for detainees in immigration detention. This ensures that those detainees who participate in the approved activities will not be considered to be performing work in breach of paragraph 235(3) of the Act.
- This instrument operates to specify the approved activities if voluntarily engaged in by a detainee in immigration detention. The below activities differ in comparison to the previous instrument IMMI 10/019:
- painting has been included as an activity for personal purposes;
- food preparation has been included with cooking;
- community activities have been limited to activities performed for charitable and other non for profit organisations.
6. Instrument LIN 20/053 makes updates to IMMI 10/019 by adding the activities listed in paragraph 5. In accordance with paragraph 15J(2)(e) of the Legislation Act 2003, external consultation was not necessary as the change was of a minor or machinery nature and does not substantially change the previous instrument IMMI 10/019.
7. The Office of Best Practice Regulation (OBPR) have advised that a Regulatory Impact Statement is not required for this instrument (OBPR Reference: 43021).
8. Under section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015, the instrument is exempt from disallowance and therefore a Statement of Compatibility with Human Rights is not required.
9. The Instrument commences on the day after it is registered on the Federal Register of Legislation.
Overview
The Migration (Approved Activities) Instrument (LIN 20/053) 2020 is an instrument made under the Migration Act 1958, which aims to specify activities that detainees in immigration detention can engage in voluntarily without being considered to perform unlawful work. This instrument was introduced to update and replace the previous instrument, IMMI 10/019, to provide clarity on the approved activities. The enacting body is the Parliament of Australia, and the instrument was made in accordance with the authority conferred by the Migration Act 1958. The policy objective is to ensure that detainees participating in approved activities are not committing an offence by performing work in breach of the Act. The instrument outlines activities such as painting for personal purposes and food preparation alongside cooking, while limiting community activities to those performed for charitable and non-profit organisations. The instrument commenced on the day after it was registered on the Federal Register of Legislation.
Scope and Application
The Migration (Approved Activities) Instrument (LIN 20/053) 2020 is made under the Migration Act 1958 and applies to unlawful non-citizens who are detained in immigration detention facilities in Australia. It specifies the activities that detainees can voluntarily engage in without committing an offence under the Act. This instrument clarifies which activities are considered approved and thus exempt from the prohibition on performing work in Australia. It includes activities such as painting for personal purposes, food preparation, and community activities for charitable and non-profit organisations. The instrument aims to ensure that detainees participating in these approved activities do not breach the Act. It repeals the previous instrument IMMI 10/019 and incorporates minor updates without requiring external consultation due to the nature of the changes. The instrument is exempt from disallowance and does not require a Regulatory Impact Statement or a Statement of Compatibility with Human Rights. It commences on the day after its registration on the Federal Register of Legislation.
Key Provisions
The Migration (Approved Activities) Instrument (LIN 20/053) serves to specify the approved activities that detainees in immigration detention can engage in voluntarily without contravening the Migration Act 1958. This instrument, made under paragraphs 235(7)(a) and 245AF(a) of the Act, repeals the previous instrument IMMI 10/019 and incorporates updates that align with the legislative intent to ensure detainees do not perform work in breach of the Act (subsection 33(3) AIA). Specifically, section 235(7)(a) of the Act exempts voluntary activities performed by detainees from being classified as work, provided these activities are approved by the Secretary, while section 245AF(a) ensures no offence is committed when detainees engage in these approved activities.
Under this instrument, detainees can voluntarily participate in a variety of approved activities such as painting for personal purposes, food preparation, and community activities, which are now limited to those performed for charitable and other non-profit organisations. These activities are specified to ensure clarity and compliance with the legislative framework. The instrument is designed to update the previous list of approved activities, reflecting minor changes that do not necessitate external consultation as per paragraph 15J(2)(e) of the Legislation Act 2003.
The obligations imposed by the Act on parties, particularly the Secretary, include the approval of specific activities that detainees can engage in voluntarily. The Secretary must ensure that these activities are explicitly outlined and communicated to relevant stakeholders to prevent any inadvertent breaches of the Act. The instrument itself mandates that these approved activities are detailed and accessible, thereby providing a clear framework for compliance.
Failure to adhere to the provisions of the Act and the approved activities outlined in the instrument can result in civil or criminal consequences. Specifically, unlawful non-citizens who perform work in Australia, as per paragraph 235(3) of the Act, commit an offence. While the instrument aims to mitigate this by specifying approved activities, any non-compliance with these approved activities can still lead to legal ramifications. The maximum penalties for breaches are not explicitly stated in the instrument but generally align with the provisions of the Migration Act 1958, which may include fines and imprisonment. The instrument's commencement date, as per section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015, is the day after its registration on the Federal Register of Legislation.