EXPLANATORY STATEMENT

STATUTORY RULES 2004 No. 392

Issued by the Authority of the Minister for Immigration and Multicultural and Indigenous Affairs

Migration Act 1958

Migration (Liberia – United Nations Security Council Resolutions) Amendment Regulations 2004 (No. 1)

Subsection 504(1) of the Migration Act 1958 (the Act) provides in part 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 provisions:

• subsection 31(3) of the Act, which provides that the regulations may prescribe criteria for a visa or visas of a specified class;

• paragraph 116(1)(g) of the Act, which provides that the Minister may cancel a visa if a prescribed ground for cancelling a visa applies to the holder;

• subsection 116(2) of the Act, which provides that the Minister is not to cancel a visa if there are prescribed circumstances in which a visa is not to be cancelled; and

• subsection 504(2) of the Act, which provides that section 49A of the Acts Interpretation Act 1901 does not prevent regulations whose operation depends upon a country or other matter being specified or certified by the Minister in a notice published in the Gazette after the regulations have taken effect.

The purpose of these Regulations is to give effect to United Nations Security Council Resolution No.1521 (2003) (Resolution 1521), which provides for the establishment of a new list of persons to whom travel restrictions apply.

The Migration (Liberia – United Nations Security Council Resolutions) Regulations 2001 (the Principal Regulations), which commenced on 1 November 2001, currently implement the United Nations Security Council Resolutions 1343 (2001) (‘Resolution 1343’) and 1478 (2003) (‘Resolution 1478’) which prohibited entry into, or transit through, member states by certain designated persons or groups involved in the Liberian conflict.

The more recent Resolution 1521 concerning Liberia effectively dissolves Resolutions 1343 and 1478, creating a new United Nations Committee to compile a new list of persons subject to travel restrictions which will be regularly updated. The new Regulations amend the Principal Regulations to incorporate Resolution 1521 and refer to a Gazette Notice which will list the names of persons to whom travel restrictions apply as a result of the Resolution. The Gazette Notice will be regularly updated to reflect amendments to the travel ban list made by the Committee.

Details of the Regulations are set out in the Attachment.

The Act specifies no conditions that need to be met before the power to make the proposed Regulations may be exercised.

The Regulations will commence on 2 April 2005.  This commencement date is a consequence of various systems requirements necessary to allow the implementation of the new Regulations.

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ATTACHMENT

Details of the Migration (Liberia – United Nations Security Council Resolutions) Amendment Regulations 2004 (No. 1)

Regulation 1 – Name of Regulations

This regulation provides that these Regulations are the Migration (Liberia – United Nations Security Council Resolutions) Amendment Regulations 2004 (No. 1).

Regulation 2 – Commencement

This regulation provides that these Regulations commence on 2 April 2005.  This commencement date is a consequence of various systems requirements necessary to allow the implementation of the Regulations.

Regulation 3 – Amendment of Migration (Liberia – United Nations Security Council Resolutions) Regulations 2001

This regulation provides that Schedule 1 amends the Migration (Liberia – United Nations Security Council Resolutions) Regulations 2001 (the Principal Regulations).

Regulation 4 – Transitional

This regulation provides that amendments made by Schedule 1, with the exception of item [10], apply in relation to an application for a visa made, but not finally determined before 2 April 2005, or made on or after 2 April 2005.

Schedule 1 – Amendments

Item [1] – Regulation 3, definition of Committee

This item amends the definition of ‘Committee’  in regulation 3 in the Principal Regulations by omitting the reference to “paragraph 14 of Resolution 1343” and replacing it with a reference to “paragraph 21 of Resolution 1521” which is defined by these Regulations to mean United Nations Security Council Resolution No. 1521 (2003).

The purpose of this amendment is to clarify that Committee means the Committee of the Security Council established under paragraph 21 of United Nations Security Council Resolution No.1521 (2003) (the Committee).

Item [2] – Regulation 3, definitions of designated person, Resolution 1343 and Resolution 1478

This item substitutes the definitions of ‘designated person’, ‘Resolution 1343’ and ‘Resolution 1478’ in regulation 3 of the Principal Regulations with new definitions of ‘designated person’ and ‘Resolution 1521’.

The new definition of ‘designated person’ provides that a designated person is a person to whom a Gazette Notice made under new regulation 4A relates.

The purpose of this amendment to the definition of ‘designated person’ is to provide that, for the purposes of the Principal Regulations, designated persons are persons specified by the Minister for Immigration and Multicultural and Indigenous Affairs under new regulation 4A. New regulation 4A provides that the Minister may specify in a Gazette Notice, a list of individuals whose names appear on a list of persons published by the Committee, who are subject to travel restrictions imposed by a United Nations Security Council Resolution concerning Liberia.

The new definition of ‘Resolution 1521’ provides that Resolution 1521 means the United Nations Security Council Resolution No.1521 (2003).

This new definition of ‘Resolution 1521’ is necessary to clarify that the Principal Regulations are designed to implement the United Nations Security Council Resolution No. 1521 (2003), following the dissolution of Resolutions 1343 and 1478.

Item [3] – After regulation 4

This item inserts new regulation 4A after regulation 4 in the Principal Regulations.

New regulation 4A provides that the Minister may specify in a Gazette Notice for this regulation a list of individuals whose names appear on a list of persons published by the Committee, who are subject to measures imposed by a United Nations Security Council Resolution concerning Liberia.

The purpose of this amendment is to provide that the Minister may, from time to time, specify in a Gazette Notice a list of designated persons whose names appear on a list of individuals published by the Committee, on whom travel restrictions are imposed by a United Nations Security Council Resolution. This will enable the list of designated persons to be kept up to date when amendments are made by the Committee.

Item [4] – Paragraph 5(1)(a)

This item amends paragraph 5(1)(a) of the Principal Regulations to omit the phrase “1 November 2001” and replace them with the phrase “2 April 2005”.

The purpose of this amendment is to provide that the special criterion for grant of visas described in new regulation 5(2), would apply in relation to an application for a visa made but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958), before 2 April 2005.

Item [5] – Paragraph 5(1)(b)

This item amends paragraph 5(1)(b) of the Principal Regulations to omit the phrase “1 November 2001” and replace it with the phrase “2 April 2005”.

The purpose of this amendment is to provide that the special criterion for grant of visas described in regulation 5(2), would apply in relation to an application for a visa made on or after 2 April 2005.

Item [6] – Subparagraphs 5(2)(a)(ii) and (iii)

This item substitutes subparagraphs 5(2)(a)(ii) and (iii) of the Principal Regulations with new subparagraph 5(2)(a)(ii). New subparagraph 5(2)(a)(ii) provides that, at the time of decision for any visa application made by a designated person, the Minister must be satisfied that the Committee has determined that the designated person’s travel would further the objectives of the United Nations Security Council’s in Liberia and the West Africa subregion.

The purpose of this amendment is to prevent the grant of any class of visa for which a designated person applies, unless the Minister is satisfied at the time of decision that the designated person’s travel would further the objectives of a relevant United Nations Security Council Resolution concerning Liberia.

Item [7] – After subregulation 5(2) at the foot

This item inserts a Note after subregulation 5(2) of the Principal Regulations. The new Note provides that the criteria relating to the application of United Nations Security Council Resolutions No.1343 (2001) and No. 1478 (2003) which were previously set out in the Principal Regulations before 2 April 2005, remain applicable to applications for visas finally determined before that date.

The purpose of this new Note is to clarify that the criteria set out in the Principal Regulations prior to 2 April 2005, relating the United Nation Security Council Resolutions No. 1343 (2001) and No. 1487 (2003), continue to apply to visa applications finally determined before 2 April 2005.

Item [8] – Subregulation 6(1)

This item amends subregulation 6(1) of the Principal Regulations to omit the phrase “1 November 2001” and replace it with the phrase “2 April 2005”.

The purpose of this amendment is to provide that the prescribed ground for cancelling visas described in subregulation 6(2) apply in relation to a visa granted on, before or after 2 April 2005.

Item [9] – Subregulation 6(3)

This item amends subregulation 6(3) of the Principal Regulations to omit the word “However” and replace it with the phrase “For subsection 116(2) of the Act”.

The purpose of this amendment is to clarify that the criteria described in subregulation 6(3) are prescribed under section 116(2) of the Act which enables the regulations to prescribe circumstances in which the Minister is not to cancel a visa on grounds prescribed under subregulation 6(2).

Item [10] – Subparagraphs 6(3)(a)(ii) and (iii)

This item substitutes subparagraphs 6(3)(a)(ii) and (iii) of the Principal Regulations with new subparagraph 6(3)(a)(ii).

Subregulation 6(2) of the Principal Regulations provides that for the purposes of paragraph 116(1)(g) of the Act, it is a prescribed ground for cancellation of a visa that the holder of the visa is or becomes a designated person, unless the visa holder satisfies the criteria in subregulation 5(2) of the Principal Regulations at the time the visa was granted.  The Minister therefore has the discretion under paragraph 116(1)(g) of the Act to cancel a visa granted to a person who was a designated person at the time of grant but subregulation 5(2) was not satisfied, or who becomes a designated person following grant of the visa.

Subregulation 6(3) sets out circumstances for the purposes of subsection 116(2) of the Act, under which the Minister is not to cancel a visa under paragraph 116(1)(g) of the Act.   New subparagraph 6(3)(a)(ii) would provide that a visa is not to be cancelled if the Minister is satisfied that the visa holder’s travel to or stay in Australia would further the objectives of the United Nations Security Council’s Resolutions for the creation of peace, stability and democracy in Liberia and lasting peace in the West Africa subregion.