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Migration Amendment (Family Violence and Other Measures) Bill 2016

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2016 - 2017

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

 

MIGRATION AMENDMENT (FAMILY VIOLENCE AND OTHER MEASURES) BILL 2016

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

Amendments to be Moved on Behalf of the Government

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Immigration and Border Protection,

the Hon. Peter Dutton MP)

 

 



 

Amendments to the Migration Amendment (Family Violence and Other Measures) Bill 2016

 

OUTLINE

 

The Migration Amendment (Family Violence and Other Measures) Bill 2016 (the Bill) amends the Migration Act 1958 (the Migration Act) to introduce a sponsorship framework for the sponsored family visa programme.

 

To address integrity issues experienced in the sponsored family visa programme, the Bill extends relevant aspects of the existing sponsorship framework in Division 3A of Part 2 of the Migration Act, which applies to work sponsors, to family sponsored visas. The new sponsorship framework requirements were initially intended to apply to the partner visa programme and would later be extended to apply to other family sponsored visas, including parent visas.

The Government made an election commitment on 21 June 2016 to introduce a new sponsored temporary visa to allow parents to stay in Australia for a period of up to five years. The intention for this new parent visa is to improve arrangements for parents to visit their Australian children without imposing any additional burden on Australia’s health care system while they are here.

 

To ensure this, as part of the new arrangements, an approved family sponsor will act as a financial guarantor for any outstanding public health costs, including aged care costs, incurred by their parent(s) whilst in Australia and will be obliged to pay these costs in the event they are not paid by the parent(s).

 

The Bill inserts new subsection 140HA(2A) to provide that the Minister must take all reasonable steps to ensure that regulations made under section 504 of the Migration Act for the purposes of subsection 140HA(1) include obligations in relation to the following matters to the extent they relate to a person who is or was an approved family sponsor:

 

(a)     complying with prescribed requirements to keep information and provide information to the Minister; and

(b)    notifying the Minister of prescribed changes in the circumstances of the person, a visa holder or former visa holder.

 

To give effect to the June 2016 election commitment, the Bill requires amendment to ensure the sponsorship framework for the sponsored family visa programme covers the requirements for the new parent visa. Specifically, an additional amendment is required to subsection 140HA(2A) of the Bill to provide that the Minister must also take all reasonable steps to ensure that regulations under section 504 for the purposes of section 140HA(1) include an obligation in relation to an approved family sponsor to pay prescribed medical, hospital, aged care or other health-related expenses incurred by a visa holder or former visa holder.

 

Further, these Government amendments oppose amendments to sections 140J and 140S of the Migration Act. The amendments currently in the Bill limit the application of section 140J and 140S so that amounts payable in relation to sponsorship obligations and liability to pay these amounts would only apply in relation to approved work sponsors. These proposed amendments are no longer required as obligations in relation to moneys owed in accordance with the regulations are now intended to apply in relation to both approved work sponsors and approved family sponsors. These debt recovery functions are currently only intended to apply to sponsors of parent visa holders and are unlikely to be extended to sponsors of partner or child visa holders.

 

FINANCIAL IMPACT STATEMENT

 

The financial impact of the amendments is nil.

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

A Statement of Compatibility with Human Rights has been completed in relation to the amendments in this Bill, and the Government amendments to the Bill, and assesses that the amendments are compatible with Australia’s human rights obligations. A copy of the Statement of Compatibility with Human Rights is at Attachment A .

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

AMENDMENTS TO THE MIGRATION AMENDMENT (FAMILY VIOLENCE AND OTHER MEASURES) BILL 2016

 

 

NOTES ON AMENDMENTS

 

Amendment (1) - Clause 2, page 2 (table item 2)

 

1.                   This amendment will revise the commencement date of Schedule 1 of the Migration Amendment (Family Violence and Other Measures) Bill 2016 (the Bill) from 1 July 2017 to a single day to be fixed by Proclamation.

 

2.                   This amendment also provides that if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

 

Amendment (2) - Schedule 1, item 39, page 8 (before line 13) before paragraph 140HA(2A)(a)

 

3.                   This amendment amends proposed subsection 140HA(2A), to be inserted by

Schedule 1, item 39, of the Bill, to include new paragraph 140HA(2A)(aa).

 

4.                   New paragraph 140HA(2A)(aa) will provide that the Minister must take all reasonable steps to ensure that regulations are made under section 504 of the Migration Act 1958 ( Migration Act) for the purposes of subsection 140HA(1) to provide an obligation for a person who is or was an approved family sponsor to pay prescribed medical, hospital, aged care or other health-related expenses incurred by a visa holder or former visa holder.

 

5.                   This would allow the Migration Regulations 1994 (Cth) to prescribe a legally binding obligation that prescribed medical, hospital, aged care or other health-related expenses incurred by the sponsored visa holder or former visa holder are to be paid by the family sponsor if the visa holder or former visa holder does not pay. Under section 140S, as proposed to be amended, these amounts will be able to be recovered from the sponsor by the organisation owed the debt. 

 

Amendment (3) - Schedule 1, item 41, page 8 (lines 27 and 28)

 

6.                   This amendment opposes Schedule 1, item 41, of the Bill, which proposes to amend subsections 140J(1) and (3) of the Migration Act.

 

7.                   Section 140J of the Migration Act relates to amounts payable in relation to sponsorship obligations.

 

8.                   Schedule 1, item 41, of the Bill amends subsections 140J(1) and (3) of the

Migration Act to insert the word “work” in these subsections after the word “approved” (wherever occurring) to change references from “approved sponsor” to “approved work sponsor” so that those provisions only apply in relation to approved work sponsors or former approved work sponsors.

 

9.                   This item is opposed to ensure that subsections 140J(1) and (3) apply to both approved work sponsors and approved family sponsors. This amendment is consequential to amendment (4) below.

 

10.         In effect this will ensure that if an amount is payable under the regulations by a person who is or was an approved family sponsor in relation to the new sponsorship obligation outlined at paragraph 140HA(2A)(aa), the person is not liable to pay the Commonwealth more than the lesser of, a limit prescribed by the regulations and the actual costs incurred by the Commonwealth.

Amendment (4) - Schedule 1, item 58, page 10 (lines 10 and 11)

 

11.               This amendment opposes Schedule 1, item 58, of the Bill, which proposes to amend subsection 140S(1) of the Migration Act.

 

12.               Section 140S of the Migration Act relates to the recovery of amounts payable to a payee in relation to sponsorship obligations.

 

13.               Schedule 1, item 58, of the Bill amends subsection 140S(1) of the Migration Act to insert the word “work” after the word “approved” to change references from “approved sponsor” to “approved work sponsor” to ensure those provisions only apply to approved work sponsors or former approved work sponsors. This item is opposed so that subsection 140S(1) applies to work and family sponsors.

 

14.               This will allow the payee to recover medical, hospital or other health-related expenses prescribed in regulations, incurred by the sponsored visa holder, from the approved family sponsor. The payee can recover the amount as a debt due to the payee in an eligible court.   

 

 

 

 

 

 

 

 

 

 

 

 

 

 



 

Statement of Compatibility with Human Rights

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

 

Government Amendments to the Migration Amendment (Family Violence and Other Measures) Bill 2016

 

The Government amendments to the Bill are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Migration Act 2011.

 

Overview of amendments to the Bill

 

This Statement of Compatibility with Human Rights relates to the Government amendments to the Migration Amendment (Family Violence and Other Measures) Bill 2016 (the Bill) and should be read together with the Statement of Compatibility with Human Rights prepared for the Bill.

 

The amendments to the Bill will:

 

·          Require the Minister to take all reasonable steps to prescribe in regulations under section 140HA of the Migration Act 1958 ( the Migration Act), a sponsorship obligation in relation to paying prescribed medical, hospital, aged care or other health-related expenses incurred by a visa holder or former visa holder;

 

·          Oppose proposed amendments to subsections 140J(1) and (3) and subsection 140S(1) of the Migration Act which would limit these sections to apply only in relation to work sponsors.

 

Additional Minister’s responsibilities in relation to sponsorship obligations regarding medical, hospital or other health-related expenses

 

To the extent that any amendments to the Migration Regulations 1994 (Cth) (the Regulations), created as a consequence of the amendment of the Bill to insert new section 140HA(2A)(aa), engage the relevant human rights and freedoms, this engagement will be addressed and discussed at the time the amendments to the Regulations are made.

 

The Hon. Peter Dutton MP, Minister for Immigration and Border Protection