Migration Amendment (Giving Documents) 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.

The Migration Amendment (Giving Documents) Regulations 2023 (the Regulations) amend the Migration Regulations 1994 (the Migration Regulations) to clarify the requirements relating to the giving of a document relating to the proposed cancellation, cancellation or revocation of the cancellation of a visa (cancellation-related documents).  In particular, the Regulations clarify the circumstances in which regulation 2.55 applies to the giving of a document, and expressly reference the provisions of the Migration Act for which Division 2.10 of Part 2 of the Migration Regulations is made.

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 the way in which cancellation documents can be given 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.

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.  Consultations were not considered necessary or appropriate as the Regulations would have no disadvantageous effect on visa holders or former visa holders. 

The Regulations are consequential to the amendments made by Schedule 1 to the Migration Amendment (Giving Documents and Other Measures) Act 2023 (the Amendment Act), which will commence on the earlier of a single day to be fixed by proclamation or 6 months from the day the Amendment Act received Royal Assent.  The Regulations commence on the same date.

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

18 Oct, 2023

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