ATTACHMENT A

 

AUTHORISING PROVISIONS

 

Subsection 504(1) of the Migration Act relevantly 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.

 

In addition, the following provisions of the Migration Act may apply:

 

*         subsections 29(2) and 29(3), which provide that the regulations provide a period during which the holder of a visa may travel to, enter, re-enter and remain in Australia;

*         subsection 30(2), which provides that a visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a temporary visa, to remain during a specified period, until a specified event happens or while the holder has a specified status; and

 

*         subsection 31(4), which provides that the regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both;

 

*         subsection 46(4), which provides that, without limiting subsection 46(3), the regulations may also prescribe:

 

o   the circumstances that must exist for an application for a visa of a specified class to be a valid application; and

o   how an application for a visa of a specified class must be made; and

o   where an application for a visa of a specified class must be made; and

o   where an applicant must be when an application for a visa of a specified class is made;

 

*         subsection 223(14), which provides that the Secretary or Australian Border Force Commissioner may issue to an officer a search warrant in accordance with the prescribed form; and

*         subsection 251(4), which provides that the Secretary or Australian Border Force Commissioner may issue to an officer a search warrant in accordance with the prescribed form.

 

 

 

 

ATTACHMENT B

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Migration Amendment (Machinery of Government) Regulations 2018

 

This 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 Legislative Instrument

 

These amendments update references to authorities in line with the Acts Interpretation Substituted Reference Order 2017 and make minor changes to provisions governing the issue and revocation of assistance notices for the purposes of the Bridging F (Class WF) (Subclass 060) visa to reflect the transfer of responsibilities from the Attorney-General's Department to the Department of Home Affairs (the Department). 

The purpose of the Acts Interpretation Amendment (Home Affairs) Substituted Reference Order 2017 was to give effect to Machinery of Government changes announced by the Prime Minister on 18 July 2017, and the transfer of responsibilities to the Home Affairs portfolio as a consequence of amendments to the Administrative Arrangements Order (AAO). The Acts Interpretation Amendment (Home Affairs) Substituted Reference Order 2017 amended the 2017 Substituted Reference Order.

Substituted reference orders are made by the Governor-General under section 19B of the Acts Interpretation Act 1901. They provide that, where a provision of an Act refers to an authority, it is to have effect as if the provision referred to another specified authority. Substituted reference orders ensure that ministers, Australian public service employees and secretaries of departments of state, can exercise all powers granted to them by legislation, for example where a Machinery of Government change has transferred the responsibility for particular legislation from one portfolio to another. In doing so, they avoid the need to amend legislation, but do not themselves amend the statute book. Instead, substituted reference orders allow affected provisions to be read as though one authority had been substituted for another, without amending the text of the provision.

This Schedule updates references to authorities, effectively substituted by the Acts Interpretation Substituted Reference Order 2017, so that the correct authority is apparent on the face of the legislation. Specifically, this instrument amends the regulation 1.03 definition of 'assistance notice,' regulation 2.07AK, Clause 060.511 of Schedule 2 and Forms 1 and 2 in Schedule 10. 

This Schedule also amends provisions governing the issue and revocation of assistance notices for the purposes of the Bridging F (Class WF) (Subclass 060) visa to reflect the transfer of responsibilities from the Attorney-General's Department to the Department.

The Subclass 060 visa is used exclusively for suspected victims of trafficking, slavery or slavery-like practices. The principal purpose of the Subclass 060 visa is to enable the visa holder to remain in Australia and assist with the criminal justice process. As a prerequisite to the grant of this visa, the appropriate authority must issue an assistance notice in relation to the Subclass 060 visa applicant.

 

Previously, assistance notices were issued by the Attorney-General, the Secretary of the Attorney-General's Department or an SES employee or acting SES employee of the Attorney-General's Department and given to the Minister for Immigration and Border Protection. The cessation of a Subclass 060 visa granted to an applicant then depended on the Minister for Immigration and Border Protection being notified in writing by the Attorney-General, the Secretary of the Attorney-General's Department or an SES employee or acting SES employee of the Attorney-General's Department that the assistance notice had been revoked.

 

Pursuant to the Acts Interpretation Substituted Reference Order 2017, the power to issue and revoke assistance notices is now exercised by the Minister for Home Affairs, the Secretary of the Department or an SES employee or acting SES employee of the Department. As a result, the authorities with the power to issue or revoke assistance notices, and the Minister who must be notified when this occurs, are in the same portfolio.

 

This instrument amends Item 1306 of Schedule 1 and Clause 060.511 to remove the requirement that the Minister be notified when an assistance notice is issued or revoked to reflect this transfer of functions. This will be replaced by an internal administrative process.

 

These changes are purely technical in nature and do not substantively affect the operation of the amended provisions.

 

Human rights implications

 

These amendments do not engage any of the applicable rights or freedoms.

 

Conclusion

 

These amendments are compatible with human rights and they do not raise any human rights issues.

 

 

The Hon Peter Dutton MP

Minister for Home Affairs

Minister for Immigration and Border Protection

 

ATTACHMENT C

 

Details of the Migration Amendment (Machinery of Government) Regulations 2018

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Migration Amendment (Machinery of Government) Regulations 2018 (the Regulations).

 

Section 2 - Commencement

 

Subsection 2(1) provides that each provision of the Regulations specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. The table states that the whole of this instrument commences on 5 August 2018. A note clarifies that this table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

 

Subsection 2(2) provides that any information in column 3 of the table is not part of the Regulations. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument. Column 3 of the table provides the date/details of the commencement date.

 

The purpose of this section is to provide for when the amendments made by the Regulations commence.

 

Section 3 - Authority

 

This section provides that the Regulations are made under the Migration Act 1958 (the Migration Act).

 

The purpose of this section is to set out the Act under which the Regulations are made.

 

Section 4 - Schedule(s)

 

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 effect of this section is that the Migration Regulations 1994 (the Migration Regulations) are amended as set out in the applicable items in the Schedules to the Regulation.

 

The purpose of this section is to provide for how the amendments in these Regulations operate.

 

 

Schedule 1 - Amendments

Items 1-5 - Regulation 1.03 (definition of assistance notice), paragraph 2.07AK(3)(b), paragraphs 2.07AK(3)(c) and (d), subparagraph 2.07AK(3)(e)(i) and subregulation 2.07AK(4)

These items amend regulations 1.03 and 2.07AK to substitute references to authorities affected by the Substituted Reference Order. In particular, these items:

*         substitute 'Attorney-General' with 'Minister' in the definition of "assistance notice" in regulation 1.03, paragraph 2.07AK(3)(b) and subregulation 2.07AK(4) in accordance with item 18 of the table set out under subsection 2.4(2) of the Substituted Reference Order;

*         substitute 'Attorney-General's Department' with 'Department' in the definition of assistance notice in regulation 1.03 in accordance with item 6 of the table set out under subsection 3.4(2) of the Substituted Reference Order;

*         substitute 'Attorney-General's' with 'Minister's' in paragraphs 2.07AK(3)(c) and (d) and subparagraph 2.07AK(3)(e)(i) in accordance with item 18 of the table set out under subsection 2.4(2) of the Substituted Reference Order;

*         substitute 'Secretary of the Attorney-General's Department' with 'Secretary of the Department' in the definition of assistance notice in regulation 1.03 in accordance with item 4 of the table set out under subsection 4.3(2) of the Substituted Reference Order;

The purpose and effect of these items is to ensure the correct authorities, as effectively substituted by the Substituted Reference Order, are apparent on the face of the regulations.

In order to avoid further amendments should the administrative arrangements for the Migration Act 1958 subsequently change, this item substitutes existing references to authorities with general references to the 'Minister,' 'Department' or 'Secretary of the Department' as appropriate.

This approach is supported by sections 19 and 19A of the Acts Interpretation Act 1901, which provide that where a provision refers to a Department or Minister without identifying the Department or Minister, the reference is to the Minister administering that provision in relation to the relevant matter, or the Department administered by the Minister administering that provision in relation to the relevant matter. Sections 19 and 19A of the Acts Interpretation Act 1901 apply to legislative instruments by virtue of section 13 of the Legislation Act 2003.

Item 6 - Subparagraph 1306(3)(c)(ia) of Schedule 1

This item amends subparagraph 1306(3)(c)(ia) of Schedule 1 to substitute 'given to the Minister' with 'issued'.

The effect of this item is that paragraph 1306(3)(c)(ia) will apply in relation to the applicant where an assistance notice has been issued in relation to the applicant, and the notice has not been revoked. Subparagraph 1306(3)(c)(ia) will no longer require that the assistance notice be given to the Minister. The purpose of this amendment is to reflect the transfer of responsibilities from the Attorney-General's portfolio to the Home Affairs portfolio as a consequence of amendments to the Administrative Arrangements Order.

Previously, assistance notices were issued by the Attorney-General, the Secretary of the Attorney-General's Department or an SES employee or acting SES employee of the Attorney-General's Department and given to the Minister for Immigration and Border Protection. The Substituted Reference Order transferred the power to issue assistance notices to authorities within the Home Affairs portfolio. Given that the authority to issue the notice and the Minister who must be notified when it is issued are now part of the same Department, it is no longer necessary to have a legislative requirement that the Minister be notified.

Items 7 and 8 - Subparagraph 060.511(2)(c)(ii) of Schedule 2 and paragraph 060.511(2A)(b) of Schedule 2

Item 7 repeals subparagraph 060.511(2)(c)(ii) of Schedule 2 and inserts a new subparagraph 060.511(2)(c)(ii).

Division 060.5 sets out when a Subclass 060 (Bridging F) visa is in effect. Previously, subclause 060.511(2) provided that, for a person to whom subclause 060.511(2) applies, the bridging visa would permit the holder to remain in Australia until the earliest of either:

*         a date specified by the Minister; or

*         28 days after the day the Attorney-General, the Secretary of the Attorney-General's Department or an SES employee or acting SES employee of the Attorney-General's Department notifies the Minister, in writing, that the assistance notice had been revoked.

New subparagraph 060.511(2)(c)(ii) provides that a Subclass 060 (Bridging F) visa to which the subparagraph applies would permit the holder to remain in Australia until the earliest of either:

*         a date specified by the Minister; or

*         28 days after the day the assistance notice is revoked in writing by the Minister, the Secretary of the Department or an SES employee or acting SES employee of the Department.

The effect of the amendment is that cessation of the visa is linked to the revocation of an assistance notice, rather than the Minister being notified that the notice has been revoked.

Item 8 repeals paragraph 060.511(2A)(b) of Schedule 2 and inserts a new paragraph 060.511(2A)(b).

Previously, subclause 060.511(2A) provided that, for a person to whom subclause 060.511(2A) applies, the bridging visa would come into effect on grant and permit the holder to remain in Australia until 28 days after the day the Attorney-General, the Secretary of the Attorney-General's Department or an SES employee or acting SES employee of the Attorney-General's Department notifies the Minister, in writing, that the assistance notice is revoked.

New paragraph 060.511(2A)(b) provides that a bridging visa to which the paragraph applies would come into effect on grant and permit the holder to remain in Australia until 28 days after the day the assistance notice is revoked in writing by the Minister, the Secretary or an SES employee or acting SES employee of the Department.

The effect of the amendment is that cessation of the visa is linked to the revocation of an assistance notice, rather than the Minister being notified that the notice has been revoked.

The purpose of these items is to reflect the transfer of responsibilities from the Attorney-General's portfolio to the Home Affairs portfolio as a consequence of amendments to the Administrative Arrangements Order, and to ensure the correct authorities, as effectively substituted by the Substituted Reference Order, are apparent on the face of the regulations.

The Substituted Reference Order provides for the following substituted references to authorities in clause 060.511 of Schedule 2:

*         substitute 'Attorney-General' with 'Minister' as per item 18 of the table under subsection 2.4(2) of the Substituted Reference Order;

*         substitute 'Attorney-General's Department' with 'Department' as per item 6 of the table under subsection 3.4(2) of the Substituted Reference Order; and

*         substitute 'Secretary of the Attorney-General's Department' with 'Secretary of the Department' as per item 4 of the table under subsection 4.3(2) of the Substituted Reference Order.

Previously, assistance notices were revoked by the Attorney-General, the Secretary of the Attorney-General's Department or an SES employee or acting SES employee of the Attorney-General's Department and given to the Minister for Immigration and Border Protection. The Substituted Reference Order transferred the power to revoke assistance notices to the Minister, the Secretary of the Department or an SES employee or acting SES employee of the Department. Given that the authorities with the power to revoke the notice, and the Minister who must be notified when the notice is revoked, are now part of the same Department, it is no longer necessary to have a legislative requirement that the Minister be notified.  

Item 9 - Schedule 10 (Forms 1 and 2)

 

This item amends Form 1 (Search Warrant - Valuables) and Form 2 (Search Warrant) in Schedule 10 to the Migration Regulations in accordance with subsection 3.4(1) of the Substituted Reference Order.

The purpose and effect of this amendment is to update references to the Department in Form 1 and Form 2 to reflect the change in the name of the Department from the 'Department of Immigration and Border Protection' to the 'Department of Home Affairs.'   

  

7501 - Operation of Schedule 1

This item inserts Clause 7501, 'Operation of Schedule 1', into Schedule 13 to the Migration Regulations.  

Subclause 7501(1) provides that the amendments made by item 6 of Schedule 1 to the Regulations apply in relation to visa applications made on or after 5 August 2018.

Subclause 7501(2) provides that the amendments made by items 7 and 8 of Schedule 1 to the Regulations apply in relation to visa applications made, but not finally determined, before 5 August 2018, and visa applications made on or after 5 August 2018.

The amendments made by items 7 and 8 of Schedule 1 to the Regulations effectively remove the legislative requirement that the authority revoking the assistance notice formally notify the Minister when this takes place. This formal notification is more appropriately replaced with an internal administrative process following the transfer of functions to the Department of Home Affairs. These changes do not substantively alter the administration of these provisions, nor do they affect the rights or liabilities of existing visa holders. The purpose of applying the amendments made by items 7 and 8 to existing applications is to provide administrative clarity.