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Migration Amendment (Visa Maximum Numbers Determinations) Bill 2013

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2013

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

 

 

Migration Amendment (Visa Maximum Numbers Determinations) Bill 2013

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

(Circulated by authority of Senator Hanson-Young)

 

 

 

 

 

 



 

 

A Bill for an Act to amend the Migration Act 1958 , and for related purposes

 

 

Outline

 

The Bill amends the Migration Act 1958 (The Act) to allow legislative instruments designated under Section 85 (Limit on visas) to be disallowed.

 

Section 85 of The Act allows the Minister to determine the maximum number of visas that can be granted in a particular subclass in any specified program year. Visa limit determinations made under this Part of The Act are not subject to disallowance. This is because Section 44(2) of the Legislative Instruments Act 2003 specifically states that legislative instruments (other than regulations) made under Part 1, 2 or 9 of the Migration Act 1958 cannot be disallowed.

 

The purpose of this Bill is to override the determination made by the government on December 2 nd , via legislative instrument IMMI 13/156, which caps the number of Protection Visas that can be granted for the 2013-1014 financial year, and to ensure that changes to visas limits, in particular Protection Visas, are subject to parliamentary scrutiny.

 

This amendment responds to an urgent public policy crisis which has led to over 30,000 asylum seekers in indefinite detention, in community detention or on bridging visas being subject a Protection Visa grant freeze. The effective freeze on visas grants will have severe social and health ramifications on the individuals who are subject to the freeze.  

 

 

 

 

NOTES ON CLAUSES

 

Clause 1 - Short Title

 

1.       This is a formal provision specifying the short title.

 

Clause 2 - Commencement

 

2.       The Bill's provisions are to commence the day after it receives the Royal Assent.

 

Clause 3 - Schedules

 

3.       This clause provides that an Act that is specified in a Schedule is amended or repealed as set out in that Schedule, and any other item in a Schedule operates according to its terms.

 

Schedule 1 - Migration Act 1958

 

Item 1

 

4.       Item 1 inserts the number (1) before the Minister for formatting clarity.

 

Item 2

 

5.       Currently, section 44(2) of the Legislative Instruments Act states that legislative instruments (other than regulations) made under Part 1, 2, or 9 of the Migration Act 1958 cannot be disallowed. Item 2 inserts a new subsection that ensures that legislative instruments made under Section 85(1) of the Migration Act 1958 can be subject to disallowance by either House of Parliament. The intent is to ensure that section 85 (Limit on visas) in Part 2 is subject to disallowance by Parliament.        

 

Item 3

 

6.       Item 3 provides that the amendments made by this Schedule apply to each legislative instrument made under Section 85 of the Migration Act 1958 made on or after 2 December 2013.   The retrospective application of this section is in response to the Minister for Immigration and Border Protection’s determination made on 2 December 2013, legislative instrument IMM 13/156, which caps the number of protection visas to be allocated this financial year. A visa limit of 1650 was set by the Minister for the 2013-2014 financial year. This limit has already been reached and therefore no further Protection Visas will be granted for this financial year. This will have serious social and health ramifications on the individuals subject to the freeze.   

Item 4

 

7.       This item relates to the determination made by the Minister on 2 December 2013 to cap Protection Visa grants for the 2013-2014 financial year. This item has the effect of a successful disallowance of the Minister’s determination. This item will not affect actions made prior to this amendment. 

 



 

 

Text Box: Statement of Compatibility with Human Rights
 Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
 
 Migration Amendment (Visa Maximum Numbers Determinations) Bill 2013
 This Bill 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 Bill
 The Bill amends the Migration Act 1958 (The Act) to allow legislative instruments designated under Section 85 (Limit on visas) to be disallowed. 
 
 Section 85 of The Act allows the Minister to determine the maximum number of visas that can be granted in a particular subclass in any specified program year. Visa limit determinations made under this Part of The Act are not subject to disallowance. This is because Section 44(2) of the Legislative Instruments Act 2003 specifically states that legislative instruments (other than regulations) made under Part 1, 2 or 9 of the Migration Act 1958 cannot be disallowed. 
 
 The purpose of this Bill is to override the determination made by the government on December 2nd, via legislative instrument IMMI 13/156, which caps the number of Protection Visas that can be granted for the 2013-1014 financial year, and to ensure that changes to visas limits, in particular Protection Visas, are subject to parliamentary scrutiny. 
 
 Human rights implications
 This Bill does not engage any of the applicable rights or freedoms, as it simply creates a mechanism for the Parliament to disallow legislative instruments determined and Section 85 of the Migration Act 1958.
Text Box: Conclusion 
 This Bill is compatible with human rights as it does not raise any human rights issues.
 
 Senator Sarah Hanson-Young