EXPLANATORY STATEMENT
Statutory Rules No. 314 of 1987
Migration Regulations (Amendment)
Issued by the authority of the Minister for Immigration, Local Government and Ethnic Affairs
Section 67 of the Migration Act 1958 (the Act), so far as is relevant, prescribes that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
As a result of amendments to the Act by the Statute Law (Miscellaneous Provisions) Act 1987 consequential amendments were made to the Migration Regulations. The amendments amend the Regulations as follows:
• As a consequence of the removal of the regulation making power to make provision for the charging of fees in respect of return endorsements in the Act the regulation imposing such a fee for return endorsements was deleted and the reference to “return endorsement” in the provision providing for a refund where a fee for a return endorsement has been charged by mistake was removed. Since 1 January 1987, return endorsements have been replaced by resident return visas. Accordingly, the provisions relating to return endorsements are no longer required.
• The citation of the Social Services Act 1947-1958 was changed to Social Security Act 1947.
• References to “maintenance guarantees” and “maintenance guarantee” were omitted and “assurances of support” and “assurance of support” substituted respectively. Maintenance guarantees were undertakings given by sponsors of migrants that they would provide support on his or her arrival in Australia. They have been known administratively as “assurances of support” since 1981. A deeming provision was included which deems “maintenance guarantees” (however described) entered into before the Regulations came into effect to be considered as “assurances of support”. Corresponding changes were made inserting the term “support” in place of “maintenance” consistent with the new title “assurance of support”.
• The regulation providing for the two dollar maximum fee chargeable by migration agents has been repealed.
• Formal amendments removed sex-specific language from the Regulations.
Details of the regulations are as follows:
• Regulation 1 provided for the commencement of the amendments to the Migration Regulations to come into operation on 1 January 1988;
• Regulation 2 amends the heading to Part IV of the Migration Regulations by omitting the heading “PART IV - MAINTENANCE GUARANTEES” and substituting the heading “PART IV - assurances of support”.
• Regulation 3 amended Regulation 20 of the Migration Regulations by omitting references to “maintenance” wherever occurring and substituting “support” and by amending the reference to Social Services Act 1947-58 and substituting Social Security Act 1947.
Regulations 4 and 5 amended Regulations 21 and 22 of the Migration Regulations. They omitted references to “maintenance guarantee”, “maintenance guarantees” and “maintain” and substituted “assurance of support” and “assurances of support” and “support” respectively wherever occurring and removed sex-specific terminology.
Regulation 6 amended Regulation 23 of the Migration Regulations so that the provisions of Regulation 22 concerning the effect of assurances of support apply to existing maintenance guarantees as if they were assurances of support.
Regulation 7 repealed Regulation 29 of the Migration Regulations which provided for a maximum $2 fee to be charged by migration agents in relation to services rendered.
Regulation 8 repealed Regulation 29B of the Migration Regulations which imposed a fee on lodgement of an application for the grant of a return endorsement.
Regulation 9 amended Regulation 29E of the Migration Regulations which provides for a refund where a fee has been charged by mistake by removing the category of return endorsement applications.
Regulation 10 amended Regulation 30 of the Migration Regulations and inserts “Local Government” in view of the administrative re-organisation of 24 July 1987.
Regulation 11 amended the Regulations as set out in the Schedule. The Schedule set out amendments to remove sex-specific language which affected: subregulation 5(2); paragraph 8(a), regulation 9, regulation 10, subregulations 11(2) and 11(4); subregulation 13(2); paragraphs 14(a) and 14(c); subregulation 18(1), paragraph 24(2)(d); subregulation 24(4); regulation 29; subregulation 29A(1B); paragraph 29A(2c) (a); paragraph 29AA(5)(b); subparagraph 29AA(5)(c)(i) ; paragraph 29D(c); regulation 31 and Form 1 in the Schedule of the Migration Regulations.
Regulation 12 provided for transitional arrangements ensuring that a maintenance guarantee given or continued in force before the commencement of these regulations will continue in force as if it were an assurance of support given under Part IV of the Migration Regulations as amended by these Regulations.
Overview
The Migration Regulations (Amendment) Statutory Rules No. 314 of 1987 were enacted to address various inconsistencies and administrative updates within the Migration Regulations as a result of amendments to the Migration Act 1958 by the Statute Law (Miscellaneous Provisions) Act 1987. The regulations were issued under the authority of the Minister for Immigration, Local Government and Ethnic Affairs and aim to ensure the continued efficiency and relevance of the regulatory framework governing migration in Australia. These amendments include the removal of outdated terms such as "return endorsement" and "maintenance guarantees" and their replacement with more contemporary terminology like "resident return visa" and "assurances of support." Additionally, the amendments respond to the administrative shift that removed the power to charge fees for return endorsements and migration agent services, aligning the regulations with the changing legislative and operational landscape.
The consequential amendments also modernise the regulatory language by eliminating sex-specific terminology and updating references to relevant Acts, such as the Social Services Act 1947-1958 to the Social Security Act 1947. These changes were designed to streamline the administration of migration processes and ensure the regulatory framework remains clear, consistent, and reflective of current practices and terminology. The regulations came into effect on 1 January 1988, providing a structured transition period for stakeholders to adapt to the updated regulatory requirements.
Scope and Application
The Migration Regulations (Amendment) Statutory Rules 1987 (No. 314) amends the Migration Regulations to reflect changes in terminology and administrative practices concerning the regulation of migration within Australia. The amendments apply to the Commonwealth of Australia, impacting the administration of migration processes and the obligations of various stakeholders, including migrants, sponsors, migration agents, and relevant government entities. The changes include the deletion of outdated terminology such as "return endorsement" and "maintenance guarantee," replacing them with "resident return visa" and "assurance of support," respectively, and the removal of references to sex-specific language throughout the Regulations. Furthermore, the amendments remove a fee for services rendered by migration agents and adjust references to align with the updated Social Security Act 1947. These amendments came into effect on 1 January 1988, ensuring that existing maintenance guarantees are considered as assurances of support, thus maintaining continuity for ongoing cases. The Regulations also include transitional provisions to ensure a smooth transition to the new terminology and practices.
Key Provisions
The key provisions of the Statutory Rules No. 314 of 1987, which amended the Migration Regulations, primarily relate to the updating of terminology and the removal of outdated fees and references. Regulation 1 sets the commencement date of these amendments as 1 January 1988. Regulation 2 changes the heading of Part IV from "Maintenance Guarantees" to "Assurances of Support", reflecting the updated terminology used in the Act. Regulation 3 updates the language in Regulation 20 to replace "maintenance" with "support" and corrects the citation to the Social Security Act 1947. Regulations 4, 5, and 6 further amend Regulations 21, 22, and 23 respectively to replace references to "maintenance guarantee" with "assurance of support" and remove sex-specific language. Regulation 7 repeals Regulation 29, which set a maximum fee of two dollars for services rendered by migration agents, as return endorsements have been replaced by resident return visas. Regulation 8 removes the fee for applications for return endorsements. Regulation 9 adjusts Regulation 29E to exclude return endorsement applications from refund provisions. Regulation 10 updates Regulation 30 to reflect the administrative reorganisation by including "Local Government". Regulation 11 includes amendments to various parts of the Regulations to remove sex-specific language. Regulation 12 provides transitional arrangements to ensure that maintenance guarantees given before the regulations' commencement continue in force as assurances of support.
The obligations imposed by these amendments on the parties governed by the Act include ensuring that all references to "maintenance guarantees" are updated to "assurances of support" and that sex-specific language is removed from the Regulations. Migration agents and other relevant entities must cease charging the two-dollar fee for services rendered and must not charge fees for return endorsement applications. Additionally, they must adhere to the new terminology and updated references in the Act. The Act does not impose specific obligations on migrants or visa applicants but requires them to provide updated forms of support, such as assurances of support, as outlined in the amended Regulations.
Breaches of the amended Migration Regulations may lead to civil or criminal consequences, depending on the nature of the offence. While the Explanatory Statement does not detail specific penalties for each potential breach, the Migration Act generally provides for penalties including fines and imprisonment for offences related to migration fraud, misrepresentation, and other violations. The maximum penalties for such offences can vary, with significant fines and imprisonment terms possible for serious breaches. It is essential for regulated parties to comply with the updated terminology and fee structures to avoid potential penalties and legal consequences.