ATTACHMENT A

 

 

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, the following provisions may apply:

 

*         subsection 31(1), which provides that there are to be prescribed classes of visas;

 

*         subsection 31(3), which provides that the regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by sections 32, 36, 37, 37A or 38B but not by sections 33, 34, 35, 38 or 38B of the Act);

 

*         subsection 41(1), which provides that the regulations may provide that visas, or visas of a specified class, are subject to specified conditions;

 

*         paragraph 41(2)(b), which provides that, without limiting subsection 41(1) of the Act, the regulations may provide that a visa, or visas of a specified class, are subject to a condition imposing restrictions about the work that may be done in Australia by the holder, which, without limiting the generality of this paragraph, may be restrictions on doing any work, or work other than specified work, or work of a specified kind;

 

*         Subsection 41(3), which provides that in addition to any conditions specified under subsection 41(1) of the Act, the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of this subsection;

 

*         Section 73, which provides that if the Minister is satisfied that an eligible non-citizen satisfies the criteria for a bridging visa as prescribed under subsection 31(3) of the Act, the Minister may grant a bridging visa permitting the non-citizen to remain in, or travel to, enter and remain in Australia during a specified period or until a specified event happens;

 

*         Subsection 82(7A), which provides that a bridging visa permitting the holder to remain in, or to travel to, enter and remain in, Australia until a specified event happens, ceases to be in effect the moment the event happens;

 

*         Paragraph 116(1)(g), which provides that a prescribed ground for cancelling a visa applies to the holder;

 

 

*         Subsection 116(3), which provides that, if the Minister may cancel a visa under subsection 116(1) of the Act, the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled; and

 

• subsection 195A(2), which provides that, if the Minister thinks that is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).

 

ATTACHMENT B

 

 

Statement of Compatibility with Human Rights

 

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

 

Migration Amendment Regulation 2013 (No. 4)

 

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

 

Section 73 of the Migration Act 1958 (the Act) provides that the Minister may grant a bridging visa to an "eligible non-citizen".

 

Paragraph 72(1)(b) includes within the definition of "eligible non-citizen" a non-citizen who "is in a prescribed class of persons."

 

This Legislative Instrument seeks to amend the Migration Regulations 1994 (the Regulations) to prescribe a new class of persons for the purposes of paragraph 72(1)(b)  comprising non-citizens who meet the following conditions:

 

a)      the non-citizen is an unlawful non-citizen; and

b)      section 195A of the Act is not available to the Minister in relation to the grant of a visa to the non-citizen; and

c)      the Minister is satisfied that the non-citizen's removal from Australia is not reasonably practicable at that time.

 

This instrument further seeks to amend the Regulations to allow the Minister to grant a Subclass 070 Bridging (Removal Pending) visa to a person who falls within this new class of persons despite anything in Schedule 1 to the Regulations. The Minister may do this provided that the Minister is satisfied that if the bridging visa is granted, the applicant will abide by the conditions to which the visa is subject.

 

The instrument provides a new set of mandatory conditions that will be imposed on the grant of a visa to a person falling within the new class:

 

•          notification of any change in personal details, including contact information (e.g. name, addresses, phone numbers, email addresses, online profiles and user names)

 

•          approval by the Minister for Immigration and Citizenship of employment and notification of changes in employment details, the intention being that persons will require approval for occupations involving chemicals of security concern, occupations in the aviation or maritime industries, and those involving handling of security-sensitive biological agents

 

•          prohibition on taking up employment in occupations that involve the use of, or access to, weapons or explosives

 

•          not becoming involved in activities prejudicial to security

 

•          prohibition on acquiring weapons, explosives and material or documentation that provides instruction on the use of weapons or explosives

 

•          approval by the Minister for Immigration and Citizenship to acquire chemicals of security concern

 

•          prohibition on undertaking activities that involve using or accessing weapons or explosives, participating in training in the use of weapons or explosives and possessing or accessing material or documentation that provides instruction on the use of weapons or explosives

 

•          approval by the Minister for Immigration and Citizenship to undertake certain activities which relate to aviation

 

•          prohibition on communicating or associating with entities listed under Part 4 of the Charter of the United Nations Act 1945 or with terrorist organisations prescribed by the Criminal Code Regulations 2002

 

•          compliance with a direction to attend an interview related to the person's visa.

 

Human rights implications

The conditions engage a number of human rights under the International Covenant on Civil and Political Rights (ICCPR):

 

•          The freedom from arbitrary interference with privacy in Article 17;

•          The freedom of movement for people lawfully within the territory in Article 12(1);

•          The freedom of association in Article 22. 

 

The conditions also engage the right to work in Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

 

It is necessary to ensure that, should a decision be made to grant visas to persons who represent a risk to the security of Australia, conditions can be imposed which manage any risk which may be posed to the safety of the Australian community.  The existing visa conditions do not achieve this. Without these new conditions it is less likely that a decision will be made to grant visas to members of this cohort, which means it is less likely that they will be released from immigration detention.

 

The right to privacy

Article 17 of the ICCPR states that

 

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

 

2. Everyone has the right to the protection of the law against such interference or attacks.

 

The Human Rights Committee in General Comment 16 stated that:

 

The introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances.

 

The limitations on privacy are considered to be reasonable, and in most cases amount to nothing more than a strict version of requirements many nations impose on all non-citizens, and indeed some citizens.  Requiring notification of changes to personal details and permission for certain types of objectively relevant work is entirely proportionate to Australia's legitimate aim of ameliorating a risk to Australia's national security and the security of the Australian community, as well as facilitating locating and contacting individuals if removal from Australia becomes possible.

 

Freedom of movement

Article 12 of the ICCPR provides that:

 

1.         Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his [or her] residence.

 

3.         The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

 

In General Comment 27 the Human Rights Committee stated:

 

The question whether an alien is "lawfully" within the territory of a State is a matter governed by domestic law, which may subject the entry of an alien to the territory of a State to restrictions, provided they are in compliance with the State's international obligations. In that connection, the Committee has held that an alien who entered the State illegally, but whose status has been regularized, must be considered to be lawfully within the territory for the purposes of article 12.

 

Without the grant of this bridging visa, the non-citizen in question would be an unlawful non-citizen, not subject to the obligation in Article 12. The Committee recognises that Australia can regularise this status on such conditions as domestic law provides, as long as these conditions are themselves compatible with the provisions of the ICCPR.

 

Conditions relating to attendance at an interview connected to a person's visa, or reporting requirements related to the person's address may affect freedom of movement of persons lawfully within Australia's territory, those limitations fall within the scope of the permissible limitations in Article 12(3) as they are for the purposes of protecting national security.

 

These are entirely reasonable conditions to impose on a non-citizen who would otherwise be unlawfully in Australia's territory, and in practical terms impose a relatively insignificant limitation on freedom of movement. The measures are aimed at ameliorating a risk to Australia's national security and the security of the Australian community, as well as facilitating locating and contacting individuals if removal from Australia becomes possible.

 

Freedom of association

Article 22(1) of the ICCPR states that:

 

Everyone shall have the right to freedom of association with others, including the right to form and joint trade unions for the protection of his interests.

The prohibition on communication or associating with entities listed under Part 4 of the Charter of the United Nations Act 1945 or with terrorist organisations prescribed by the Criminal Code Regulations 2002 is also considered to be reasonable and proportionate to the legitimate aim of protecting the Australian community.

 

The right to work

Article 6(1) of the ICESCR provides that:

 

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.

 

The Bill does not operate to deprive people of work unfairly. The Bill does not seek to preclude foreign nationals from working in Australia, but rather places conditions on that ability which are squarely based on preventing risks to the Australian community and to Australia's national security.

 

Limiting access to aeroplanes, weapons and explosives (and their precursors) is a reasonable measure for persons who are a security risk to the Australian community. Indeed similar conditions are imposed in many circumstances on Australian citizens. The link to the objective sought is clear.

 

Conditions relating to engaging in certain activities and acquiring certain goods are to be applied in relation to activities and goods considered by the Government to risk compromising Australia's national security.  These conditions are a reasonable and proportionate restriction on rights such as freedom of expression, peaceful assembly and association as they are for persons who are a risk to Australia's national security.

 

The removal of mandatory cancellation for Subclass 070 (Bridging (Removal Pending)) visa and instead making it a discretion is compatible with human rights as it allows for individual assessment of the necessity of cancelling a visa.

 

Conclusion

To the extent that this Legislative Instrument limits the human rights of non-citizens who are a risk to Australia's security, those limitations are reasonable, necessary and proportionate to the legitimate aims of protecting Australia and the Australian community from national security risks.

ATTACHMENT C

 

Details of Migration Amendment Regulation 2013 (No. 4)

 

Section 1 - Name of Regulation

 

This section provides that the title of the Regulation is the Migration Amendment Regulation 2013(No. 4).

 

Section 2 - Commencement

 

This section provides for the Regulation to commence on the day after it is registered.

 

This purpose of this section is to provide for when the amendments made by the Regulation commences.

 

Section 3 - Authority

 

This section provides that this regulation is made under the Migration Act 1958 ('the Act').

The purpose of this section is to set out the Act under which the Regulation is 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 purpose of this section is to be provide for how the amendments in the Regulation operate.

 

Schedule 1 - Amendments

Item [1] - subregulation 2.20(1)

This item is a consequential amendment to the amendment in item [2] to amend subregulation 2.20(1) of Division 2.5 to the Principal Regulations.

This item provides that, for the purposes of the definition of eligible non-citizen in section 72 of the Act (which deals with persons eligible to be granted a Bridging visa), the classes of persons described in new subregulation 2.20(17) are prescribed.

Item [2] - At the end of regulation 2.20

 

This item inserts new subregulation 2.20(1) into Division 2.5 to the Principal Regulations. This amendment prescribes a new class of eligible non-citizen for the purpose of a grant of Bridging visa.

 

Subsection 72(1) of the Act provides that an eligible non-citizen means a non-citizen who:

 

• has been immigration cleared; or
• is in a prescribed class of persons; or
• the Minister has determined to be an eligible non-citizen.

 

New subregulation 2.20(17) provides for a prescribed class of persons as eligible non-citizens for the purposes of section 72 of the Act, being a non-citizen who:

 

*         is an unlawful non-citizen; and

*      section 195A of the Act is not available to the Minister in relation to the grant of a visa to the non-citizen; and

*      the Minister is satisfied that the non-citizen's removal from Australia is not reasonably practicable at that time.

 

For the purpose of subsection 14(1) of the Act, an unlawful non-citizen is a non-citizen in the migration zone who is not a lawful non-citizen. Subsection 13(1) of the Act provides that a lawful non-citizen is a non-citizen in the migration zone who holds a visa that is in effect. Generally, an unlawful non-citizen is a person in the migration zone who does not hold a visa.

                            

Section 195A of the Act allows the Minister to grant a detainee a visa (whether or not on application). Subsection 195A(1) of the Act provides that this section applies to a person who is in detention under section 189. Subsection 195A(2) of the Act provides that if the Minister thinks it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).

 

The purpose of this amendment is to prescribe those persons who:

 

• do not currently hold a visa; and
• are not in immigration detention to allow the Minister to grant a visa under section 195A; and
• removal from Australia is not reasonably practicable at that time;

 

as eligible non-citizens for the purposes of granting a Bridging visa under section 72 of the Act. 

 

Item [3] - After regulation 2.25

 

This item inserts new regulation 2.25AA into Division 2.5 to the Principal Regulations.

 

New regulation 2.25AA provides that the Minister may grant a Bridging R (Class WR) visa without application to an eligible non-citizen who:

 

*         is an unlawful non-citizen; and

*      section 195A of the Act is not available to the Minister in relation to the grant of a visa to the eligible non-citizen; and

*      the Minister is satisfied that the eligible non-citizen's removal from Australia is not reasonably practicable at that time.

 

New regulation 2.25AA also provides that despite anything in Schedule 1 to the Regulations, the Minister may grant the eligible non-citizen a Bridging R (Class WR) visa if the Minister is satisfied that, at the time of decision, the eligible non-citizen satisfies the criteria set out in clause 070.222 of Schedule 2.

 

A Bridging R (Class WR) visa provides for a Subclass 070 (Bridging (Removal Pending) visa ('Subclass 070 visa') that enables the release pending removal of persons from Australia, as removal of the person is not reasonably practicable at that time.

 

Clause 070.222 of Schedule 2 relevantly provides that the Minister is satisfied that, if the bridging visa is granted, the visa holder will abide by the conditions to which the visa is subject.

 

Subitem 1307(1) of Schedule 1 to the Regulations provides that an application for a Bridging R (Class WR) visa must be taken to have been made in accordance with subregulation 2.20A(2).

 

Subregulation 2.20A(2) relatively provides that an application for a Bridging R (Class WR) visa is taken to have been validly made by a person if:

 

• the person has been given an invitation in writing by the Minister to apply for the visa; and
• the person indicates in writing to Immigration that he or she accepts the invitation.

 

The purpose and effect of new regulation 2.25AA is that, notwithstanding subregulation 2.20A(2), the Minister may grant a Subclass 070 visa without application to an eligible non-citizen who is:

 

*         is an unlawful non-citizen; and

*      section 195A of the Act is not available to the Minister to grant  the eligible non-citizen a visa; and

*      the Minister is satisfied that the eligible non-citizen's removal from Australia is not reasonably practicable at that time;

 

if the Minister is satisfied that the applicant will abide by the conditions to which a Subclass 070 visa is subject.

 

Item [4] - After paragraph 2.43(3)(aa)

 

This item inserts paragraph 2.43(3)(aaa) into Part 2 of the Principal Regulations. This amendment means that the subclass 070 visa is a 'relevant visa' for the purpose of grounds for cancellation of a visa in regulation 2.43. 

 

The Minister may cancel a visa under paragraph 116(1)(g) of the Act if a prescribed ground for cancelling a visa applies to the holder. The prescribed grounds are set out in regulation 2.43.

 

The effect of this amendment is to remove the Subclass 070 visa from the visas that the Minister must cancel if a prescribed circumstance exists. The purpose of this amendment is to provide greater flexibility for the Minister to cause a Subclass 070 to cease to be in effect.

 

Item [5] - Subclause 050.211(2) of Schedule 2

 

This item is a consequential amendment to Item [2] to amend subclause 050.211(2) of Schedule 2 to the Regulations.

 

This item provides that an applicant for a Subclass 050 (Bridging (General)) visa is not an eligible non-citizen of the kind set out in new subregulation 2.20(17).

 

Item [6] - At the end of Part 070 of Schedule 2

 

This item inserts new clause 070.612 and new clause 070.613 in Schedule 2 to the Principal Regulations, after clause 070.611.

 

New clause 070.612 provides that, if the Minister has granted the visa under new regulation 2.25AA, new conditions 8550, 8551, 8552, 8553, 8554, 8555, 8556, 8560, 8561, 8562 and 8563 must be imposed. This is in addition to any conditions mentioned in clause 070.611.

 

The purpose of this amendment is to ensure that, should the Minister grant a Subclass 070 visa without application under new regulation 2.25AA, the visa holder is required to comply with a range of new visa conditions.

 

As visa holders to whom this amendment applies do not hold a visa, are not held in immigration detention and the removal of the holder from Australia is pending, it is necessary to ensure that, if they are granted a Subclass 070 visa without application, that visa has conditions attached to it that are sufficient to manage risks associated with security concerns.  The existing visa conditions for the Subclass 070 visa is not be able to achieve this.           

 

New clause 070.613 provides that, if the Minister has granted the visa under section 195A of the Act, conditions 8550, 8551, 8552, 8553, 8554, 8555, 8556, 8560, 8561, 8562 and 8563 may be imposed.  This is in addition to any condition mentioned in clause 070.611.

 

The purpose of this amendment is to provide that, should the Minister grant a Subclass 070 visa using the personal and non-compellable powers under section 195A of the Act, the visa holder may be required to comply with the new visa conditions, in addition to any visa condition mentioned in clause 070.611 that must be imposed.

 

This provides the Minister with flexibility to apply the new visa conditions when granting a Subclass 070 visa under section 195A of the Act to manage any risks or security concerns that may be associated with the visa holder

 

Item [7] - Schedule 8, clause 8459, after the note

 

This amendment inserts new clause 8550, 8551, 8552, 8553, 8554, 8555 and 8556 in Schedule 8 to the Principal Regulations.

 

 New clause 8550

 

New clause 8550 provides that a visa holder must notify the Minister of any change in the holder's personal details, including contact information, including a change to any of the following information:

 

• the holder's name;
• an address of the holder;
• a phone number of the holder;
• an email address of the holder;
• an online profile or other online identifier used by the holder; and
• a user name of the holder

 

not less than two working days before the change is to take place.  

 

The purpose of this amendment is to require that holders of the Subclass 070 visa to which this condition applies provide to the Minister any change in their personal details.  Maintaining current personal details for visa holders enables the Minister to communicate efficiently and effectively with visa holders.  

 

New clause 8551

 

New clause 8551 provides that a visa holder must seek the Minister's approval before taking up employment in the following occupation, or occupations of a similar kind:

 

• occupations that involve the use of or access to chemicals of security concern;
• occupations in the aviation or maritime industries; and
• occupations at facilities that handle security-sensitive biological agents. 

 

The new clause provides that 'chemicals of security concern' means chemicals specified by the Minister in an instrument in writing for this definition. This item inserts a note after the definition of 'chemicals of security concern' to provide that:

 

The Minister's instrument will refer to chemicals that have been identified, by the Council of Australian Governments, as chemicals of security concern. Without limiting what the Council might identify, the chemicals may include:

(a)      industrial chemicals, including chemicals used in the retail, pharmaceutical or pool and spa sectors, that could be diverted from their lawful use to other purposes such as terrorist-related activities; and

(b)     agricultural and veterinary chemicals that could be diverted from their lawful use to other purposes, including terrorist-related activities.

 

The purpose of this amendment is to require that holders of a Subclass 070 visa to which this clause applies obtain approval from the Minister prior to engaging in types of employment relating to chemicals of security concern or in the aviation or maritime industries or at facilities that handle security-sensitive biological agents.

 

New clause 8552

 

New clause 8552 provides that a visa holder must notify the Minister of any change in the holder's employment details, not less than two working days before the change is to take place.  

 

The purpose of this amendment is to require that holders of a Subclass 070 visa to which this clause applies notify the Minister of any change in their employment details.  Maintaining current employment details for visa holders enables the Minister to monitor whether visa holders are complying with other conditions associated with their visa, for example, new clause 8551 above.

 

New clause 8553

 

New clause 8553 provides that a visa holder must not become involved in activities that are prejudicial to security within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979.

 

New clause 8554

 

New clause 8554 provides that a visa holder must not acquire any of the following goods:

 

• weapons,
• explosives; and
• material or documentation that provides instruction on the use of weapons or explosives.         

 

The new clause also provides that, in this clause, the term 'weapon' means 'a thing made or adapted for use for inflicting bodily injury'. 

   

New clause 8555

 

New clause 8555 provides that a visa holder must obtain the Minister's approval before undertaking the following activities, or activities of a similar kind:

 

• flight training; or
• flying aircraft.

 

 

 

New clause 8556

 

New clause 8556 provides that a visa holder is not permitted to communicate or associate with entities listed under Part 4 of the Charter of the United Nations Act 1945 (the Charter of the United Nations Act) or with organisations prescribed by the
Criminal Code Regulations 2002 (the Criminal Code Regulations).  

 

Part 4 of the Charter of the United Nations Act provides the mechanism by which Australia implements the United Nations Security Council Financial Sanctions, also known as the United Nations Terrorist Asset Freezing Regime.  Approximately 1600 entities are currently listed.  

 

The purpose of this amendment is to ensure that holders of a subclass 070 visa to which the new clause applies do not communicate or associate with entities listed under Part 4 of the Charter of the United Nations Act 1945 or with organisations prescribed by the Criminal Code Regulations.               

 

Item [8] - At the end of Schedule 8

 

This amendment inserts new clauses 8560, 8561, 8562 and 8563 into Schedule 8 to the Regulations.

 

New clause 8560

 

New clause 8560 provides that a visa holder must obtain the Minister's approval before acquiring chemicals of security concern.

 

The new clause also provides that, in this new clause, 'chemicals of security concern' means chemicals specified by the Minister in an instrument in writing for this definition. This item inserts a note after the definition of 'chemicals of security concern' to provide that:

 

The Minister's instrument will refer to chemicals that have been identified, by the Council of Australian Governments, as chemicals of security concern. Without limiting what the Council might identify, the chemicals may include:

(a)    industrial chemicals, including chemicals used in the retail, pharmaceutical or pool and spa sectors, that could be diverted from their lawful use to other purposes such as terrorist-related activities; and

(b)   agricultural and veterinary chemicals that could be diverted from their lawful use to other purposes, including terrorist-related activities.

 

New clause 8561

 

New clause 8561 provides that, if the holder is directed by the Minister to attend an interview that relates to the holder's visa (including an interview with ASIO), the holder must comply with the direction. 

 

The purpose of this amendment is to require holders of a Subclass 070 visa to which this condition applies to comply with a direction by the Minister to attend an interview related to their visa, including an interview with ASIO.

 

New clause 8562

 

New clause 8562 provides that a visa holder must not take up employment in occupations that involve the use of, or access to, weapons or explosives or occupations of a similar kind.

 

The new clause also provides that, in the new clause, the term 'weapon' means 'a thing made or adapted for use for inflicting bodily injury'. 

 

The purpose of this amendment is to require holders of a Subclass 070 visa to which this clause applies do not engage in types of employment that involve weapons or explosives.

 

New clause 8563

 

New clause 8563 provides that a visa holder must not undertake the following activities, or activities of a similar kind:

 

• using or accessing weapons or explosives;
• participating in training in the use of weapons or explosives; and
• possessing or accessing material or documentation that provides instruction on the use of weapons or explosives. 

 

This new clause also provides that, in the new clause, the term 'weapon' means 'a thing made or adapted for use for inflicting bodily injury'. 

 

The purpose of this amendment is to ensure that holders of a subclass 070 visa to which this clause applies must not undertake activities, such as access to or use of weapons or explosives.