Migration Amendment (Bridging Visa Conditions) Regulations 2023

The Migration Act 1958 (the Migration Act) is an Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons.

Subsection 504(1) of the Migration Actprovides that the Governor-General may make regulations, not inconsistent with the Migration Act, prescribing matters required or permitted to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Migration Act.

In addition, regulations may be made pursuant to the provisions listed in Attachment A.

The Migration Amendment (Bridging Visa Conditions) Regulations 2023 (the Amendment Regulations) amend the Migration Regulations 1994 (the Migration Regulations) to:

·         make technical amendments to provisions enabling the Minister to grant a Bridging R (Class WR) visa (BVR) without application; and

·         make amendments consequential to amendments of the Migration Act that would be made by the Migration and Other Legislation Amendment (Bridging Visas, Serious Offenders and Other Matters) Act 2023 (Serious Offenders Act); and

·         set out the operation and application of certain visa conditions which must be applied to a Subclass 070 (Bridging (Removal Pending)) visa (BVR) in certain circumstances; and

·         provide for periodic review of the imposition of certain visa conditions (including curfews and monitoring devices), to ensure appropriate and effective consideration of the visa conditions necessary to manage the risk posed by a BVR holder to the Australian community.

Following the High Court’s judgment in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor (S28/2023) (NZYQ) on 8 November 2023, the Migration Amendment (Bridging Visa Conditions) Act 2023 inserted and amended a number of visa conditions in the Migration Regulations, and commenced on 18 November 2023. The Amendment Regulations are complementary to these changes, enhancing the BVR framework and further strengthening the Government’s approach to managing risks to the Australian community.

The Amendment Regulations amend provisions which enable the Minister to grant a BVR visa without application to an individual, including in circumstances where the non-citizen otherwise indicates they may not comply with the conditions of their BVR. In circumstances where those non-citizens may pose a risk to vulnerable people in the community, this amendment substantially enhances the protection of the community by ensuring that those non-citizens who are released from immigration detention as a consequence of the High Court’s decision in NZYQ are subject to appropriate and enforceable visa conditions. In some circumstances, a breach of a visa condition by a BVR holder may also constitute a criminal offence under the Migration Act.

The Amendment Regulations provide for a range of new and amended conditions for BVR visa holders, some of which apply to those individuals who have committed offences involving a minor or a vulnerable person, or offences involving violence and sexual assault. The new or amended conditions provided by the Amendment Regulations include those relating to the reporting of residence information (condition 8612), interstate and overseas travel (condition 8614), associations and memberships of organisations involving minors (condition 8615), contact with individuals involved in criminal activities (condition 8616), financial transactions (condition 8617), bankruptcy (condition 8618), personal contact details (condition 8625) and personal information online (condition 8626).

The Serious Offenders Act would amend the Criminal Code Act 1995 to create a new statutory scheme enabling the Minister to apply to a court for a community safety detention order (CSDO) or a community safety supervision order (CSSO) (collectively, community safety orders (CSO)). The Amendment Regulations provide that a BVR that is taken to be granted to a non-citizen who is subject to a CSO (under paragraphs 76AA(2)(b) or 76AA(3)(c) of the Migration Act) is subject to a specific set of visa conditions. These conditions have been selected to complement but not duplicate any conditions imposed under a CSO. The specific set of conditions are focused on managing the migration status of the BVR holder, including in relation to their immigration status, national security matters and potential removal, if that becomes reasonably practicable. These conditions are consistent with how migration matters are managed for other non-NZYQ affected BVR holders.

The Amendment Regulations also provide that if conditions 8617 (financial transactions), 8618 (bankruptcy), 8620 (curfews) or 8621 (electronic monitoring) are imposed on a BVR granted to a non-citizen, those conditions will be imposed only for 12 months from the day of visa grant. The intention is to ensure that the imposition of these conditions is subject to a form of periodic review at least once in every 12 month period. If the Minister grants a further BVR during or after that period, the Minister would at that time be required to re-consider whether it is not reasonably necessary to impose the condition for the protection of any part of the Australian community. The grant of a further BVR restarts the 12-month period of effect for these visa conditions.

The matters dealt with in the Regulations are appropriate for implementation in regulations rather than by parliamentary enactment.  It has been the consistent practice of the Government of the day to provide for detailed matters of visa criteria and visa conditions in the Migration Regulations rather than in the Migration Act itself. The Migration Act expressly provides for these matters to be prescribed in regulations.

The current Migration Regulations have been in place since 1994, when they replaced regulations made in 1989 and 1993. Providing for these details to be in delegated legislation rather than primary legislation gives the Government the ability to effectively manage the operation of Australia’s visa program and respond quickly to emerging needs.

A Statement of Compatibility with Human Rights (the Statement) has been completed in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The overall assessment is that the Regulations are compatible with human rights. The Statement is at Attachment B.

The Office of Impact Analysis (the OIA) has been consulted in relation to the amendments. No Impact Analysis is required. The OIA consultation reference number is OIA23-06022.

The Regulations are a legislative instrument for the purposes of the Legislation Act 2003 (the Legislation Act).

Section 17 of the Legislation Act provides that the rule-maker must be satisfied that there has been undertaken any consultation that is appropriate and reasonably practicable before making a legislative instrument. The Department has consulted other Commonwealth agencies in the course of developing the Amendment Regulations, including the Attorney-General’s Department.

The Regulations commence on the day after they are registered on the Federal Register of Legislation.

Further details of the Regulations are set out in Attachment C.

The Migration Act specifies no conditions that need to be satisfied before the power to make the Regulations may be exercised.

Written by Ross Ahmadzai

7 Dec, 2023

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