2022-2023

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

MIGRATION AMENDMENT (AUSTRALIA’S ENGAGEMENT IN THE PACIFIC AND OTHER MEASURES) BILL 2023

MIGRATION (VISA PRE-APPLICATION PROCESS) CHARGE BILL 2023

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Immigration, Citizenship and Multicultural Affairs, the Honourable Andrew Giles MP)

MIGRATION AMENDMENT (AUSTRALIA’S ENGAGEMENT IN THE PACIFIC AND OTHER MEASURES) BILL 2023

MIGRATION (VISA PRE-APPLICATION PROCESS) CHARGE BILL 2023

OUTLINE                                                                                           

Migration Amendment (Australia’s Engagement in the Pacific and Other Measures) Bill 2023

The Migration Amendment (Australia’s Engagement in the Pacific and Other Measures) Bill 2023 (the Bill) amends the Migration Act 1958 (the Migration Act) to allow the Minister to implement a visa pre-application process, involving random selection of eligible persons who will then be permitted to apply for a relevant visa. The Bill does not use the expression “ballot”; however, in this Explanatory Memorandum, the word “ballot” is used as a convenient shorthand to describe the visa pre-application process. Selection via the ballot will be a legal requirement to apply for a visa where this requirement is specified as a visa application validity requirement in the Migration Regulations 1994 (the Migration Regulations).

The primary and immediate purpose of the Bill is to support the Government’s policy objectives in relation to engagement with Pacific nations. In order to build a strong and engaged Pacific diaspora in Australia, the Government has committed to the creation of a new class of visa, to be called the Pacific Engagement Visa (PEV), to provide access to permanent residence in Australia for an annual quota of citizens of certain Pacific countries and Timor-Leste. This will strengthen country to country ties; support wider mobility within the region, thereby assisting the future regional response to climate change pressures; contribute to Pacific economies; and provide opportunities for cultural, business, educational, and skills exchange. Participation in the proposed PEV will be subject to the agreement of the relevant Pacific countries and Timor-Leste. Consultation with those countries is being undertaken by the Department of Foreign Affairs and Trade. 

The creation of the PEV, and its application requirements and criteria for grant, will require various amendments to the Migration Regulations. However, it is first necessary to amend the Migration Act, as the Migration Act does not currently provide a framework for the Minister to conduct a ballot.

In order to establish this framework, the Bill:

·          inserts new section 46C in the Migration Act, which establishes the legislative power for the Minister to arrange a ballot to be conducted in relation to one or more visas, including power for the Minister to make a determination, in the form of a disallowable legislative instrument, setting out details relating to eligibility to participate in a ballot and the arrangements for the conduct of the ballot; and

 

·          amends section 46 of the Migration Act to clarify that regulations that specify the criteria for making a valid visa application (usually in Schedule 1 to the Migration Regulations) can include a requirement that the visa applicant has been selected in a ballot.

Persons who are successful in the ballot for the PEV will be notified that they may apply for the visa, which, if granted, will permit permanent residence in Australia. Partners and dependent children of the selected person may be included in the visa application. To be eligible to register for the PEV ballot, it is envisaged that a person will need to be citizen of a participating country and meet age requirements. These registration requirements, and any other rules that may be developed, will be determined in a disallowable legislative instrument made under new subsection 46C(14). To be eligible for visa grant, it is envisaged that the primary applicant will need to have a written offer of employment in Australia and meet standard public interest criteria, including criteria relating to health and character. These criteria, and other relevant criteria for visa application and grant, will be developed as proposed amendments to the Migration Regulations following the passage of the Bill.

The use of a ballot for choosing applicants for the PEV is appropriate because demand for this visa is expected to exceed the number of PEVs available annually under Australia’s migration program. A ballot will provide eligible persons from participating countries with equal and transparent access to the PEV. As the number of places, allocated on an annual basis, to citizens of each participating country will vary, to reflect population differences in those countries and the priorities of the Australian Government, there may be a number of ballots conducted, for example, one ballot for each participating country. Multiple selections for each country can be held if necessary to ensure that the annual program target for that country is achieved. The use of ballots in this way for migration from the Pacific is similar to the approach taken by New Zealand for many years.

Beyond the primary purpose of supporting the proposed PEV, the Bill provides a framework for the ballot process to be used in relation to other visas. This will be dependent on decisions by the Government of the day and will also be subject to parliamentary oversight. That is, any regulations to introduce a ballot requirement for a particular kind of visa, and the legislative instrument setting out details of the ballot requirement for that kind of visa, will be disallowable by the Parliament. 

The benefits of a ballot to select eligible visa applicants may include:

·          more efficient visa processing and more effective management of Departmental resources, by managing the rate of visa applications received by the Department and avoiding large numbers of applications that cannot be accommodated within the annual migration program and which may lead to long and unrealistic visa processing queues, or visa refusals where the annual cap has been met;

·          equitable and fair access to temporary and permanent migration programs which are regularly over-subscribed;

·          avoidance of the requirement for visa applicants to pay the non-refundable first instalment of the visa application charge (VAC) for an application which may be subject to a lengthy queue due to the limited number of places in the migration program, or refusal where the annual cap has been met. Although a prospective visa applicant may be required to pay a small registration charge to enter the ballot, the person will only be required to pay the VAC if a visa application is made following selection in the ballot, selections for which would match allocated places in the migration program; and

·          accurate targeting of priority cohorts for particular visas. For example, the eligibility requirements to enter the ballot will be able to limit eligibility to participate in the ballot by reference to any objective criteria that are relevant to the particular visa, including nationality in the case of the PEV, and possibly including matters such as occupation, skills, and work experience for other visas.

The eligibility criteria for participation in the ballot must be matters that are objective. For example, the criteria may be that the person is within a certain age range or holds a passport of a specified kind. It is not proposed that officers of the Department will assess any of these matters at the ballot stage. It is proposed to operate as a fully online system. There should be no incentive for persons to attempt to manipulate the ballot by including false information, as the ultimate result will either be an invalid visa application or a valid visa application that must be refused. The integrity risks will be assessed before creating ballot requirements for any particular kind of visa and the integrity of the system will be closely monitored.

Migration (Visa Pre-application Process) Charge Bill 2023 

The Migration (Visa Pre-application Process) Charge Bill 2023 (the Charge Bill) imposes a charge (which may be nil) on persons who register as a participant in a ballot. There may be different charges for different ballots, and for different classes of people, prescribed by regulations.

The Charge Bill is necessary because there is a possibility that the proposed charges may amount to a tax rather than a fee for service. Although the amount of the charge will be low (less than $100, indexed annually), it is not possible to determine the relationship between the amount of the charge and the cost of conducting the ballot. This is because it is not known how many participants there will be in any ballot. Accordingly, in the absence of an ascertainable relationship between the charge and the cost of conducting the ballot, the appropriate course is to legislate the charge on the basis that it is, or may be, a tax. Under section 55 of the Constitution, a law imposing taxation must not deal with any other matter. Accordingly, a separate Bill is required to impose the charge.

A small charge for participation in a ballot is likely to be necessary in most ballots to ensure that those who register are genuine and have given serious consideration to their capacity to take up a relevant visa, should they be successful in being selected in the ballot. Without this small charge, ballots may become bloated with participants who do not follow through by applying for the relevant visa. This will result in an inefficient process that may not deliver the annual program target for grants of the relevant visa.

The Charge Bill allows regulations to be made prescribing the amount of charge with the ability to prescribe different amounts for different ballots, and for different classes of persons. Importantly, the Charge Bill establishes a ceiling for the maximum amount of charge ($100) that may be prescribed under the regulations for a particular ballot. The Charge Bill also provides a mechanism for indexing this ceiling in accordance with annual movements in the Consumer Price Index. Regulations prescribing a charge would be disallowable by the Parliament.  

The amount prescribed in regulations for a particular ballot may be nil.  

FINANCIAL IMPACT STATEMENT

Substantial changes will be required to the Department of Home Affairs ICT systems to introduce the functionality for a visa ballot. An indicative cost of $1.5 million over three years from 2022-23 has been estimated for implementation of changes to the ICT systems and ongoing support. This cost will be offset by revenue arising from the Charge Bill, which cannot be estimated at the present time, as it will depend on the amount of the charge to register for a ballot, the number of ballots, and the number of persons who chose to participate in the ballots.

As the immediate and primary purpose of the ballot is to support the PEV, it is relevant to note that, in the 2022-23 Budget, the Government allocated $175.1 million over four years from 2022-23 and $80.3 million per year from 2026-27, to meet the anticipated costs of the  PEV.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

A Statement of Compatibility with Human Rights has been completed in relation to the amendments in the Bill and the Charge Bill in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 , and assesses that the amendments are compatible with Australia’s human rights obligations. A copy of the Statement of Compatibility with Human Rights is in the Attachment .

 

 

MIGRATION AMENDMENT (AUSTRALIA’S ENGAGEMENT IN THE PACIFIC AND OTHER MEASURES) BILL 2023

NOTES ON INDIVIDUAL CLAUSES

Section 1         Short Title

1.         This section provides that the short title of the Bill, when enacted, will be the Migration Amendment (Australia’s Engagement in the Pacific and Other Measures) Act 2023.

Section 2         Commencement

2.         This section sets out the times at which the various provisions of the Act commence.

3.         Subsection 2(1) provides that each provision of the Act 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.

4.         Table item 1 provides that the whole of this Act will commence on a single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 6 months beginning on the day the Act receives the Royal Assent, they commence on the day after the end of that period.

5.         The note below the table covered by subsection 2(1) makes it clear that the table relates only to the provisions of the Act as originally enacted. The table will not be amended to deal with any later amendments to the Act.

6.         Subsection 2(2) provides that any information in column 3 of the table is not part of the Act. Information may be inserted in this column, or information in it may be edited, in any published version of the Act. There is currently no information in column 3 of the table.

Section 3         Schedules

7.         This section provides that legislation that is specified in a Schedule to the Act is amended or repealed as set out in the applicable items in the Schedule concerned. In addition, any other item in a Schedule to this Act has effect according to its terms.

SCHEDULE 1 - AMENDMENTS

Migration Act 1958

Item 1             Subsection 5(1)

8.         This item inserts a new definition of visa pre-application process charge . This is the charge payable by a person, under the Migration (Visa Pre-application Process) Charge Act 2023 (the Charge Act), for registration to participate in a ballot where random selection by ballot is a step towards eligibility to apply for a visa.  

9.         The visa pre-application process charge is imposed by the Charge Act; however, its operation is also controlled by new subsections 46C(22) and (23) of the Migration Act, inserted by the amendment in item 3 of this Schedule (see item 3 below).

Item 2             After subsection 46(4)

10.       This item inserts new subsection 46(4A) after subsection 46(4) of the Migration Act. Section 46 sets out the requirements that must be met in order for an application for a visa to be a valid application, and provides for the regulations to prescribe criteria that must be satisfied for an application to be valid. Section 47 of the Migration Act provides that the Minister must consider valid visa applications and must not consider visa applications that are not valid applications.

11.       In particular, paragraph 46(4)(a) clarifies that the regulations may prescribe  circumstances that must exist for a visa application to be a valid application. New subsection 46(4A) provides that without limiting paragraph 46(4)(a) or the power to prescribe criteria, the prescribed circumstances that must exist for a visa application to be valid include the circumstance that the applicant was selected in accordance with the applicable visa pre-application process conducted under subsection 46C(1). Section 46C is inserted by item 3 of this Schedule (see that item, below).

12.       The purpose of new subsection 46(4A) is to clarify that there is legal authority to prescribe in the Migration Regulations, as a criterion for validity of a visa application, that  the applicant has been selected in a ballot.

Item 3             After section 46B

13.       This item inserts new section 46C (Visa pre-application process), which provides the legislative framework for the ballot process referred to in new subsection 46(4A), inserted by item 2 of this Schedule (see above).

14.       New subsection 46C(1) provides a general power for the Minister to arrange for a ballot to be conducted if regulations are in force which prescribe a criterion mentioned in subsection 46(4A) as a criterion for making a valid application for a visa. As noted above (item 2), amendments to the Migration Regulations having that effect would be authorised pursuant to new subsection 46(4A) and subsection 46(3). The Minister’s general power allows the Minister to make administrative arrangements concerning the conduct of the ballot including, in particular, arrangements for the random selection of registered participants and the numbers of registered participants to be selected, having regard to the Australian Government’s priorities. This power is subject to other provisions of section 46C including, in particular, rules set out in the ministerial determination relating to the particular ballot (see new subsections 46C(13) to 46C(20) below).  

Characteristics of a visa pre-application process

15.       New subsection 46C(2) provides that a visa pre-application process must involve the registration of eligible persons as registered participants in the process, so long as those persons meet the eligibility requirements, followed by the random selection of registered participants. As noted at the outset of this Explanatory Memorandum, the word “ballot” is used throughout the Explanatory Memorandum as a shorthand reference to the visa pre-application process which must involve registered participants being selected at random. Eligibility requirements must be set out in a ministerial determination, a legislative instrument made by the Minister under subsection 46C(14) (see also subsections 46C(15) and 46C(21)).

16.       New subsections 46C(3) to subsection 46C(7) deal with how long the ballot is to be open for registrations, and when selections of persons may occur. These procedural requirements may be determined administratively, as part of the arrangements made by the Minister for the conduct of the ballot as mentioned in subsection 46C(1). Alternatively, the procedural requirements may be determined by the Minister in a legislative instrument: see new subsections 46C(13) to 46C(20), discussed below. These options will allow the procedural  arrangements to be dealt with in the most efficient manner, taking account of the different visas for which the ballot may be used in the future, which will depend on decisions by the Government of the day.

17.       New subsection 46C(3) has the effect that a ballot may be open for registration for a finite period, with a beginning date and an end date, or it may be open for an indefinite period, with a beginning date but no end date. The circumstances in which ballots might be used in the future are unknown at the time of enactment of this legislation, apart from the planned use for the PEV, and it is therefore appropriate to maintain flexibility. In some cases it may be appropriate to keep the ballot open indefinitely, although a registered participant’s inclusion in the ballot might lapse after a period of time (see subparagraph 46C(15)(b)(xi)).

18.       New subsection 46C(4) provides that a finite registration open period can be extended for a further period or further periods. This ensures maximum flexibility.

19.       New subsection 46C(5) provides that the selection of registered participants in the ballot may occur during a finite period, with a beginning date and an end date, or during an indefinite period, with a beginning date but no end date. The intention is to provide flexibility to design the ballot arrangements in the way that best suits the particular visa which the ballot is supporting.

20.       New subsection 46C(6) provides that a finite selection open period can be extended for a further period or periods and the selection of registered participants may take place on one or more occasions during the finite selection open period.

21.       Similarly, new subsection 46C(7) allows for selection of registered participants to take place on one or more occasions during an indefinite selection open period. Subsections 46C(6) and 46C(7)  provide flexibility to fine-tune the ballot to suit the particular migration program. In particular, the power to conduct multiple selections will enhance the capacity to meet targets for grants of particular types of visas. For example, if a lower than expected number of persons selected in a ballot go on to lodge visa applications, the shortfall can be addressed by making another selection from the ballot.

22.       New subsection 46C(8) has the effect that a person selected in a ballot ceases to be a registered participant in that ballot. This is a housekeeping measure, to ensure that the same person is not selected again in any subsequent selections under that same ballot.

23.       New subsection 46C(9) provides that the end of a finite or an indefinite registration open period does not prevent a new ballot being conducted in relation to any or all of the same visas. This allows the Minister to continue to conduct ballots for the same kind of visa or visas into the future. For example, if a ballot for a particular visa has a registration open period of 12 months, following this 12 month period a new ballot for that visa may be commenced, with new registration open periods, new selection open periods, and, if required, new eligibility requirements.  The rules for these recurring ballots may be included in one legislative instrument made by the Minister under subsection 46C(14), or more than one legislative instrument.

24.       New subsection 46C(10) allows more than one visa ballot to be conducted in relation to one or more visas. A note advises that this means that multiple visa pre-application processes can be conducted concurrently in relation to a visa. For example, with respect to the PEV, as the number of places, allocated on an annual basis, to citizens of each participating country will vary, to reflect population differences in those countries and the priorities of the Australian Government, there is proposed to be a number of ballots conducted concurrently for the PEV, one ballot for each participating country, with each ballot having an eligibility requirement that a participant is a citizen of the relevant country. This allows for random selection of eligible participants from each ballot. As noted above, multiple selections for each country can be held if necessary to ensure that the annual program target for that country is achieved. The rules for these concurrent ballots may all be included in one legislative instrument made by the Minister under subsection 46C(14).

Use of a computer program

25.       New subsection 46C(11) allows the Minister to arrange for the use a computer program to conduct the ballot or a part of the ballot. It is intended that ballots will be conducted online. That is, the initial registration to participate in a ballot will require completion of an online form, and the random selections of registered participants in the ballot will be undertaken by a computer program. Officers of the Department of Home Affairs will determine the number and timing of the occasions when computer selections will occur and also the number of persons to be selected by the computer on each occasion. Operating on the basis of those instructions, the computer will undertake random selections from among the persons who are registered participants in the ballot when the selections occur.

26.       New subsection 46C(12) ensures that the authority to use a computer program provided by subsection 46C(11) does not limit the general power to arrange a ballot under subsection 46C(1). It is possible for the Minister to arrange for the conduct of a ballot without the use of a computer program should that ever become necessary.

Ministerial determination

27.       New subsection 46C(13) provides that a ballot must not be conducted under subsection 46C(1) unless a determination by the Minister is in force under subsection 46C(14) in relation to the conduct of the ballot. This will ensure that the substantive question of who is eligible to participate in a particular ballot will always be governed by a legislative instrument made by the Minister and subject to parliamentary scrutiny and disallowance by the Parliament (see subsection 46C(20) below).

28.       New subsection 46C(14) complements subsection 46C(13) by creating the power for the Minister to determine, in a legislative instrument, the rules that apply in relation to the conduct of a particular ballot. A note is included to refer the reader to subsection 13(3) of the Legislation Act 2003 (the Legislation Act), which would allow the Minister to determine, in a single legislative instrument, the rules that apply in relation to a class of ballots. For example, the multiple concurrent ballots that will be required for the PEV can be covered by one determination which applies to all the relevant ballots as a class. Another example would be a ballot for a particular visa that occurs in the same form every year. One determination could set the rules for those recurring ballots. It would not be necessary to make a new determination every year.

29.       New subsection 46C(15) provides that a ministerial determination must deal with eligibility requirements for the registration of a person in a ballot. These will be objective matters such as the kind of passport that must be held and the person’s age. The requirement for the eligibility requirements to be objective is explained further below in relation to subsection 46C(21). All other matters listed in subsection 46C(15) are matters that may be dealt with in a determination, but are not required to be dealt with, by a ministerial determination. These are all procedural matters, which are distinct from the substantive eligibility requirements for participation in the ballot. The procedural matters include the manner of registration, information to be provided by participants, the registration open period, extension of the registration open period, the selection open period, extension of the selection open period, withdrawal of a person’s registration, circumstances in which a person’s registration lapses, and selection of registered participants. In relation to these procedural matters, the Minister can choose whether the matters need to be dealt with in the ministerial determination or, alternatively, can be dealt with administratively by officers of the Department of Home Affairs.  It is appropriate to provide this level of flexibility, so that this new model for managing Australia’s migration program can be implemented in the most efficient manner.

30.       New subsection 46C(16) clarifies that the list of matters that may be covered in a ministerial determination, as set out in subsection 46C(15), is non-exhaustive. Therefore, the Minister is empowered to include rules and requirements which are not listed in that subsection. This ensures that the Minister has a broad power to arrange the conduct of ballots.

31.       New subsection 46C(17) clarifies that a determination under subsection 46C(14) may provide for different rules for different ballots. This ensures flexibility in relation to ballot requirements.

32.       New subsection 46C(18) clarifies that a determination under subsection 46C(14) may provide for different rules for different classes of persons. This ensures flexibility in relation to ballot requirements.

33.       New subsection 46C(19) clarifies that subsections 46C(17) and 46C(18) do not limit the general flexibility provided by subsection 33(3A) of the Acts Interpretation Act 1901 , which states: “ Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws) with respect to particular matters (however the matters are described), the power shall be construed as including a power to make, grant or issue such an instrument with respect to some only of those matters or with respect to a particular class or particular classes of those matters and to make different provision with respect to different matters or different classes of matters ”. This reinforces the flexibility that is provided to the Minister to tailor ballot arrangements to optimise the use of this new tool in the administration of Australia’s migration program.

34.       New subsection 46C(20) ensures that a ministerial determination under subsection 46(14) is subject to disallowance by either House of the Parliament in accordance with section 42 of the Legislation Act. Without this provision, the legislative instrument containing the ministerial determination would be exempt from disallowance pursuant to table item 20 of regulation 10 of the Legislation (Exemptions and Other Matters) Regulation 2015, which is made pursuant to paragraph 44(2)(b) of the Legislation Act. It is appropriate for the ministerial determination to be subject to disallowance as it will deal with the eligibility requirements that must be met to participate in a ballot. These eligibility requirements will reflect important decisions by the Minister about access to Australian visas, and direct parliamentary oversight and scrutiny is appropriate.

Eligibility requirements

35.       New subsection 46C(21) clarifies the general scope of the eligibility requirements that may be determined by the Minister under subsection 46C(14). Paragraphs 46C(21)(a) and 46C(21)(b) clarify that the eligibility requirements for participation in a ballot are not limited to the types of criteria that apply to the validity of visa applications, as prescribed pursuant to subsections 46(3) and 46(4). The ballot is a distinct process, occurring prior to the visa application, and entry to the ballot is subject to whatever eligibility requirements the Minister considers are appropriate. However, paragraph 46C(21)(c) provides that eligibility requirements must be objective. This provision is intended to ensure consistency with the legal position in relation to the criteria that can be prescribed in relation to the validity of visa applications. Since the 2004 decision of the Federal Court in Kim v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 956, it has been understood that criteria for the validity of visa applications must relate to matters that can be assessed by reference to objective standards. That is, the criteria must not require the formation of a judgement or opinion about contestable matters, as opposed to a simple factual conclusion, such as the type of passport held. The eligibility requirements for the ballot are subject to the same legal standard as visa application validity criteria.

Visa pre-application process charge

36.       New subsection 46C(22) provides that if a visa pre-application charge is payable in respect of registration to participate in a ballot, the charge is to be paid at the time of registration. The charge would be imposed by the Charge Act, which sets out the specific parameters of the imposition of the charge itself (see below), noting that the charge may be nil. Subsection 46C(22) further provides that if a charge is to be paid and it is not paid then that person’s registration is not valid, the person will not be included in the ballot and the person will be taken never to have been a registered participant in the ballot.

37.       Payment by credit card will be required as part of the online registration process.  A small charge for participation in a ballot is likely to be necessary in most ballots to ensure that those who register are genuine and have given serious consideration to their capacity to take up a relevant visa should they be successful in being selected in the ballot. Without a small charge, ballots may become bloated with participants who do not follow through by applying for the relevant visa. This will result in an inefficient process that may not deliver the annual program target for grants of the relevant visa.

38.       New subsection 46C(23) provides that the regulations may make provision for the remission, refund, or waiver of the charge, and may also make provision for exemptions from the charge. These provisions allow flexibility to provide these forms of assistance to ballot participants if required.

Extra-territorial operation

39.       New subsection 46C(24) provides that section 46C extends to acts, omissions, matters and things outside Australia. The purpose of this provision is to ensure that the ballot process operates as intended, including in relation to the charge, regardless of whether participants are in Australia or outside Australia.  

 

 

MIGRATION (VISA PRE-APPLICATION PROCESS) CHARGE BILL 2023

NOTES ON INDIVIDUAL CLAUSES

 

Part 1—Preliminary

Section 1                     Short Title

1.         This section provides that the short title of the Bill, once enacted, will be the Migration (Visa Pre-application Process) Charge Act 2023 (the Charge Act).

Section 2         Commencement

2.         This section sets out the times at which the various provisions of the Charge Act commence.

3.         Subsection 2(1) provides that each provision of the Charge Act 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.

4.         Table item 1 provides that the whole of this Act will commence on the later of the start of the day after the Act receives the Royal Assent or immediately after the commencement of the Migration Amendment (Australia’s Engagement in the Pacific and Other Measures) Act 2023 . However, the provisions will not commence if the Royal Assent is not received.

5.         The note below the table covered by subsection 2(1) makes it clear that the table relates only to the provisions of the Act as originally enacted. The table will not be amended to deal with any later amendments to the Act.

6.         Subsection 2(2) of the Charge Act provides that any information in column 3 of the table is not part of the Act. Information may be inserted in this column, or information in it may be edited, in any published version of the Act. There is currently no information in column 3 of the table.

Section 3         Act to extend to external Territories

7.         This section provides that this Act applies to Norfolk Island, the Coral Sea Islands Territory, the Territory of Cocos (Keeling) Islands, the Territory of Christmas Island and the Territory of Ashmore and Cartier Islands and that those territories are deemed to be a part of Australia for the purposes of the Act and shall be deemed not to be a place outside Australia.

Section 4         Extra-territorial application

8.         This section provides that the Act is applicable outside of Australia. This is to ensure that a Charge is imposed on persons outside Australia who register for the visa pre-application process.

Section 5         Definitions

9.         This section provides that the term charge is defined to mean a charged imposed by the Charge Act .

Part 2—Imposition and amount of charge

Section 6         Imposition of charge

10.       This section is the central provision of the Charge Act, in that it imposes a charge on a person who registers for a ballot in accordance with the new subsection 46C(1) of the Migration Act, noting that subsection 8(5) below allows for a nil charge. The purpose of imposing a small charge for registration for some ballots will be to discourage vexatious and frivolous registrations and ensure those who register have a genuine intention to apply for the relevant visa if they are successful in the ballot.  

Section 7         By whom charge payable

11.       This section confirms that the charge imposed is payable by the person who registers for a ballot.  

Section 8         Amount of charge

12.       Subsection 8(1) provides that the amount of charge payable by a person is the amount prescribed by regulations.

13.       Subsection 8(2) allows for different charges to be payable for different ballots and different classes of ballots. The purpose of this is to provide the Government flexibility to charge an amount as needs may require.  Paragraph 8(2)(b) clarifies that the regulations may prescribe one charge amount for a group of ballots.  For example, the regulations may prescribe one amount for the multiple concurrent ballots (one for each participating country) that will apply to the proposed Pacific Engagement Visa (PEV), and that different amounts may be prescribed for different groups of ballots.

14.       Subsection 8(3) allows for different charges to be payable by different classes of persons.

14.       Subsection 8(4) provides that subsections 8(2) and (3) do not limit section 33(3A) of the Acts Interpretation Act 1901 . This means that, despite the specific provisions allowing for differing charges, any additional flexibility flowing from section 33(3A) of the Acts Interpretation Act 1901 continues to apply.

15.       Subsection 8(5) provides that the amount of the charge prescribed by the regulations for a ballot may be nil.

Section 9         Charge cap amount

16.       This section places a ceiling of $100 (subject to indexation) on the amount of charge that the regulations may impose. The purpose of a cap on the amount of charge is to ensure that the Government cannot impose excessive charges for the ballot. Persons selected in the ballot will also be required to pay the applicable visa application charge to apply for the visa.

Section 10       Indexation of charge cap amount

17.       This section provides for the charge cap amount of $100 to vary in accordance with variations in the consumer price index.

18.       Subsection 10(2) of the Charge Act provides that the charge cap amount is replaced each 1 July after the Act commences. The subsection provides the formula to determine a new amount. The formula is:

           

19.       Subsection 10(3) provides the formula to determine the indexation factor, which is required for the purposes of subsection 10(2). The formula is:

 

20.       Subsection 10(3) also provides that the terms used in the formula have the following meanings:

·          CPI quarter means a period of three months ending on 31 March, 30 June, 30 September or 31 December; and

·          index number means the All groups Consumer Price Index number (being the weighted average of the eight capital cities) published by the Australian Statistician. 

21.       Subsections 10(4) to 10(7) provide further technical rules for the operation of the indexation.

Section 11       Regulations

24.       Section 11 of the Charge Act provides the Governor-General with the power to make regulations for the purposes of the Act.

 

                                                                                                            ATTACHMENT

Statement of Compatibility with Human Rights

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

 

Migration Amendment (Australia’s Engagement in the Pacific and Other Measures) Bill 2023

and

Migration (Visa Pre-application Process) Charge Bill 2023

 

These Bills 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) Act 2011 .

 

Overview of the Bills

The Migration Amendment (Australia’s Engagement in the Pacific and Other Measures) Bill 2023 (the Amendment Bill) would amend the Migration Act 1958 (the Migration Act) to provide an ability to conduct a visa pre-application process, also referred to in this Statement as a ballot, that would enable the random selection of persons who would then be able to apply for a visa to travel to and/or remain in Australia. The Migration (Visa Pre-application Process) Charge Bill 2023 (the Charge Bill) would impose a charge on a person registering as a participant in such a process. Both Bills are described in more detail below.

These Bills are part of a legislative package that will implement the Government’s election commitment to boost Pacific permanent migration. The Government proposes to create a new Pacific Engagement Visa (PEV) which will offer permanent residency to eligible citizens of participating Pacific Island countries and Timor-Leste, and their immediate family members. Prospective PEV applicants will be randomly selected through a visa pre-application ballot process, with entrants successfully drawn in the ballot and their immediate family members able to apply for a PEV.  The PEV itself will be created by amendments to the Migration Regulations 1994 (the Migration Regulations).

The implementation of the PEV will support the Government’s commitment to strengthen Australia’s ties with the Pacific, and will significantly increase the number of nationals of Pacific Island countries and Timor-Leste who have access to permanent residency in Australia. There is currently no dedicated permanent residency pathway for nationals of Pacific Island countries and Timor-Leste. It is proposed that up to 3,000 Pacific Engagement Visas (including family members) will be allocated annually through a visa pre-application ballot process. The PEV will be open to migrants who are nationals of the participating countries, located either in or outside Australia, providing equitable and fair access to Australian permanent residency for them and their immediate family members. The numbers of these permanent visas would be allocated in addition to Australia’s overall annual permanent migration program.

 

Migration Amendment (Australia’s Engagement in the Pacific and Other Measures) Bill 2023

 

The Amendment Bill provides:

·          that the Migration Regulations may prescribe that a criterion for making a valid application for a visa of a class is that the applicant has been selected in accordance with the applicable visa pre-application process;

·          the power for the Minister to arrange for a visa pre-application process to be conducted for that purpose, including through the use of a computer program under the Minister’s control; and

·          that a visa pre-application process is to be open for a finite period (the ‘finite registration open period’) or an indefinite period (the ‘indefinite registration open period’) and that selection of registered participants may take place on one or more occasions during a finite period (the ‘finite selection open period’) or an indefinite period (the ‘indefinite selection open period’). The Amendment Bill clarifies that the Migration Act does not however prevent the finite registration open period and the finite selection open period from being extended.

The Amendment Bill also provides that the Minister may, by disallowable legislative instrument, determine the rules that apply in relation to the conduct and operation of a visa pre-application process for a visa, such as the PEV. The Amendment Bill provides that such a determination must deal with eligibility requirements for registration in a visa pre-application process and also provides a non-exhaustive list of matters that may be dealt with in such a determination. These matters include how the registration must be made, the information to be provided when registering for the process, the period within which the visa pre-application process is open for registrations to be made and the period in which the selection of registered participants may take place, as well as any extensions of those periods, withdrawals of registrations and when registrations may lapse and the selection of registered participants in a visa pre-application process. It is intended that the disallowable legislative instrument that would be made to specify eligibility requirements for registration in a ballot will reflect some of the key objective criteria for the grant of the relevant visa.

The Amendment Bill also provides that the determination may provide for different rules for different visa pre-application processes and for different classes of persons.

The Amendment Bill further provides that any visa pre-application process charge imposed under the Charge Bill is to be paid at the time of registration and establishes that the regulations may make provisions for remissions, refunds and waivers of, and exemptions to, the charge.  These provisions allow flexibility to apply these measures to ballot participants where prescribed circumstances exist.

The Amendment Bill is necessary to provide legislative authority and functionality to a visa pre-application ballot process as the Migration Act does not currently have a visa ballot framework.

The visa pre-application ballot process established by the Amendment Bill will be able to be utilised in Australia’s migration programs in a number of ways intended to promote equitable and fair access to both temporary and permanent visa programs, where the number of prospective applicants may exceed available places, and where it is otherwise appropriate to do so. This in turn helps ensure applications on hand are finalised in a timely manner, reducing the visa processing wait times for applicants and reducing visa refusals where an annual program cap has been met. The use of a visa pre-application process for specific visa categories will be effected through amendments to the Migration Regulations. While the Amendment Bill does not prevent expansion of the ballot model to any specific visa class, the Government does not intend to use a visa pre-application process for all visa categories that may have a high number of applicants in relation to the available places - for example, Refugee and Humanitarian Program visas are not intended to be made subject to such a process as that would undermine the underlying principles of Australia’s Humanitarian Program which are to provide resettlement and protection to those most in need

The Migration (Visa Pre-application Process) Charge Bill

The Charge Bill imposes a charge on persons registering to participate in a visa pre-application process. The amount of the charge would be prescribed in regulations made under the Charge Bill and can be different in relation to different visa pre-application processes, in relation to groups of visa -pre-application processes and in relation to different classes of persons.  The amount of the charge prescribed may be nil.

The Charge Bill establishes a maximum amount that can be prescribed, of AUD100.  This cap is subject to indexation in accordance with the formula provided in the Charge Bill, which ensures that the maximum charge updates annually to reflect changes in the Consumer Price Index.

It is intended to prescribe in the regulations made under the Charge Bill a charge amount of AUD25 on persons who register to participate in a ballot, to enable an application for a PEV.

 

Human rights implications

The Bills may engage the following rights:

·          the right to equality and non-discrimination in Article 2(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Article 26 of the International Covenant on Civil and Political Rights (ICCPR).

·          rights relating to privacy in Article 17 of the ICCPR.

 

Rights of equality and non-discrimination

Article 2(2) of the ICESCR states:

The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 

Article 26 of the ICCPR states:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

In its General Comment 18, the UN Human Rights Committee (UNHRC) stated that:

The Committee observes that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the [ICCPR].

Similarly, in its General Comment on Article 2 of the ICESCR, the UN Committee on Economic, Social and Cultural Rights has stated (at 13) that:

Differential treatment based on prohibited grounds will be viewed as discriminatory unless the justification for differentiation is reasonable and objective. This will include an assessment as to whether the aim and effects of the measures or omissions are legitimate, compatible with the nature of the [ICESCR] rights and solely for the purpose of promoting the general welfare in a democratic society. In addition, there must be a clear and reasonable relationship of proportionality between the aim sought to be realized and the measures or omissions and their effects.

Neither the ICCPR nor the ICESCR give a right for non-citizens to enter Australia for the purposes of seeking residence or employment. The UNHRC, in its General Comment 15 on the position of aliens under the ICCPR, stated that:

The [ICCPR] does not recognize the right of aliens to enter or reside in the territory of a State party. It is in principle a matter for the State to decide who it will admit to its territory. However, in certain circumstances an alien may enjoy the protection of the [ICCPR] even in relation to entry or residence, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise.

Consent for entry may be given subject to conditions relating, for example, to movement, residence and employment. A State may also impose general conditions upon an alien who is in transit. However, once aliens are allowed to enter the territory of a State party they are entitled to the rights set out in the [ICCPR].

As such, Australia is able to set requirements for the entry of non-citizens into Australia, and does so on the basis of reasonable and objective criteria.

The Amendment Bill and the Charge Bill set up a framework that will allow for a visa pre-application process to be implemented for some visas, and permit differentiation between who is eligible to register as a participant in that process, as well as differentiation in various aspects of such processes. This may engage the right to non-discrimination under the ICCPR. In particular, and in conjunction with amendments to the Migration Regulations, the making of regulations under the Charge Bill and the making of disallowable legislative instruments under the Amendment Bill, eligibility to apply for some visas may be limited to those who pay a charge to register for the visa pre-application process, meet other eligibility requirements for the registration and are successful in the ballot. If granted a visa to enter and/or remain in Australia following this ballot process, the person may, depending on the specific visa, be able to exercise a variety of rights in Australia, for example the right to work, and hence is some circumstances rights under the ICESCR may also be engaged.

The Amendment Bill would amend the Migration Act to provide a power for the Minister to arrange a pre-visa application ballot process and, by disallowable legislative instrument, determine the rules that apply in relation to the conduct of an applicable visa pre-application ballot process.

The Statement of Compatibility with Human Rights that will accompany such a disallowable legislative instrument will explain in more detail the specific rules and eligibility requirements chosen for that visa pre-application process and why they are reasonable, necessary and proportionate in the circumstances. However it is intended that eligibility requirements for a participant to register in the visa pre-application ballot process would align with the key objective visa eligibility criteria prescribed in the Migration Regulations for the visa. This is to mitigate circumstances of participants who draw a place in the ballot not meeting the visa requirements of the visa program. For example, an eligibility requirement for registration in the PEV ballots would be that the person is a national of a participating country, to reflect the purposes of that specific visa program.

The requirements a person must meet to be eligible to register in the visa pre-application process will be objective and capable of being determined through the use of a computer program based on information provided by the person in the registration process. The ballot registration process would require those registering to declare that they meet the eligibility requirements by responding to a number of questions in order to submit the registration and enter the ballot. Any person who is not eligible to register for the ballot based on objective information declared in their registration form will not be accepted and will not able to submit their registration.

Selection via the visa pre-application process will be a legal requirement to apply for a visa where this requirement is prescribed as a visa application validity criterion in the Migration Regulations for the relevant visa Each time that such a criterion is prescribed in the Migration Regulations, it will be accompanied by a Statement of Compatibility with Human Rights that explains the nature and purpose of the specific visa type and why a visa pre-application process (or processes) may be appropriate for that visa program.

The ultimate aim of having a visa pre-application process that selects registered participants at random, after they have declared their eligibility to take part in the ballot, is to introduce a fair, equitable and objective method for providing access to a visa program that has limited places and is intended to ensure that all eligible persons have an equal opportunity to apply for entry to Australia under that program. The use of a ballot to enable the random selection of applicants for the PEV is appropriate because demand for this visa is expected to exceed the number of PEVs available annually under Australia’s migration program.

Persons who are unsuccessful in a ballot may register for future ballots for which they are eligible, or consider other visa options that may be available to them to enter and/or remain in Australia.

The Amendment Bill and the Charge Bill will also introduce the ability to prescribe, in the regulations made under the Charge Bill, a visa pre-application charge. Subject to indexation, this amount is capped at AUD100 under the Charge Bill and the specific amount will be determined at a level appropriate to the specific visa program and may be nil. The reasons for imposing a particular charge will be explained in the Statement of Compatibility with Human Rights that will accompany regulations made under the Charge Bill. Imposing a charge for registering for the visa pre-application process will assist in managing integrity of registrations and in ensuring access in cases of genuine interest only. The Amendment Bill also provides that the regulations may make provisions for remissions, refunds and waivers of, and exemptions to, the charge. These provisions will allow flexibility to apply these measures to ballot participants where prescribed circumstances exist. As such, the visa pre-application charge is not expected to have a significant impact on the ability of a person to register for a ballot or adversely affect the rights of equality and non-discrimination of such persons.

The visa pre-application process framework introduced by these Bills is aimed at promoting equitable access to visa programs with limited places that may be in high demand, and differentiation in terms of who and how a person may access that process will be based on reasonable and objective criteria that is proportionate to the aims of the specific visa program, consistent with the rights of equality and non-discrimination.

Rights relating to privacy

Article 17 of the ICCPR states:

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 Amendment Bill provides that the disallowable legislative instrument that determines the requirements for the conduct of the visa pre-application process may deal with the information that is to be provided by persons who wish to register as participants in that process. The Statement of Compatibility with Human Rights that will accompany each such instrument will explain the details of the information required for the relevant process, however it is expected this would include some of the same information that would be needed to complete an application for the relevant visa, including the person’s name, date of birth, passport details and details of the person’s immediate family unit (if applicable to the visa program). This information will be self-declared and used to manage eligibility for the visa pre application process. The provision of basic personal information for registration in the ballot, also required in a visa application, will also assist to manage the integrity of registrations to ensure that the person named in the registration who is chosen at random to apply for the visa and the associated visa applicant are the same person.

All information collected for the purposes of the registration for the visa pre-application process will be treated in accordance with the requirements of the Privacy Act 1988 and other applicable legislative requirements relating to the collection, use and disclosure of such information. The collection and use of this information is reasonable and necessary to ensure the eligibility of persons registering for the relevant visa pre-application process and the integrity of that process. Therefore, any interference with the privacy of a person who chooses to register for a visa pre-application process would be lawful and not arbitrary.

Conclusion

The Amendment Bill and the Charge Bill are compatible with human rights because, to the extent that they may limit human rights, those limitations are necessary, reasonable and proportionate.

The Honourable Andrew Giles MP

Minister for Immigration, Citizenship and Multicultural Affairs