New Instrument

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 Act provides 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.

Subparagraph 116(1)(g) of the Migration Act provides that the Minister may cancel a visa if he or she is satisfied that a prescribed ground for cancelling a visa applies to the holder, except if there exists a prescribed circumstance in which a visa cannot be cancelled.

The Migration Amendment (Biosecurity Contravention) Regulations 2023 (the Amendment Regulations) amends the Migration Regulations 1994 (the Migration Regulations) to expand the grounds for the cancellation of visas where the Minister or a delegate reasonably believes that a visa holder has contravened provisions under the Biosecurity Act 2015 (the Biosecurity Act), to include contravention of new subsection 186A(1) of the Biosecurity Act.

The Biosecurity Act provides the regulatory framework for the management of diseases and pests entering Australia that may cause harm to human, animal or plant health or the environment. Contraventions of the Biosecurity Act pose a serious threat to Australia’s economy, agricultural sector, animal, plant, human health and the environment.

Under the Migration Amendment (Biosecurity Contraventions and Importation of Objectionable Goods) Regulations 2019, the cancellation ground under subparagraph 2.43(1)(s) was introduced. This ground gives the decision-maker the power to cancel a specified visa (visitor, student and temporary work visas) where it is reasonably believed that the holder has contravened subsections 126(2), 128(2), 532(1) or 533(1) of the Biosecurity Act.  The purpose of this amendment was to strengthen compliance tools available to deter and respond to behaviour that is in contravention of Australia’s biosecurity laws.

On 6 December 2022, the Biosecurity Act was amended to include new section 186A. New subsection 186A(1) provides that a person is liable to a civil penalty if:

·         they bring or import conditionally non-prohibited goods into Australian territory; and

·         a condition in relation to such goods has not been complied with; and

·         the goods are concealed for the purpose of preventing the goods from being found, or preventing the true nature of the goods from being determined, by a biosecurity official.

The Amendment Regulations provide the Minister with a discretion to cancel the same specified visas in Australia in circumstances where it is reasonably believed that there has been an attempt to conceal goods for the purpose of preventing those goods from being found, or preventing the true nature of those goods from being determined by a biosecurity official under new subsection 186A(1). In making a decision, the Minister or delegate will weigh up a number of factors including the seriousness of the breach and the consequences to the passenger. This aligns with the purpose of the Migration Amendment (Biosecurity Contraventions and Importation of Objectionable Goods) Regulations 2019 to deter and respond to behaviour that contravenes Australia’s biosecurity laws.

The matters dealt with in the Regulations are appropriate for implementation in regulations rather than by parliamentary enactment. It has been consistent practice for the Government of the day to provide for detailed visa settings in the Migration Regulations rather than in the Migration Act itself. The Migration Act expressly provides for these matters to be prescribed in regulations, as can be seen in the authorising provisions. 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 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. A copy of the statement is at Attachment A.

The Office of Impact Analysis (OIA) has been consulted in relation to the regulatory impact of the amendments. The OIA has advised that an Impact Analysis is not required (OIA consultation reference OIA23-04954).

Consultation has been undertaken with the Department of Agriculture, Fisheries and Forestry. The consultation undertaken accords with section 17 of the Legislation Act 2003 (the Legislation Act).

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

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

The Regulations amend the Migration Regulations, which are exempt from sunsetting under table item 38A of section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015. The Migration Regulations are exempt from sunsetting on the basis that the repeal and remaking of the Migration Regulations:

·         is unnecessary as the Migration Regulations are regularly amended numerous times each year to update policy settings for immigration programs;

·         would require complex and difficult to administer transitional provisions to ensure, amongst other things, the position of the many people who hold Australian visas, and similarly, there would likely be a significant impact on undecided visa and sponsorship applications; and

·         would demand complicated and costly systems, training and operational changes that would impose significant strain on Government resources and the Australian public for insignificant gain, while not advancing the aims of the Legislation Act.

The Department follows standard practices to notify clients about amendments of the Regulations, including updating its website and notifying peak bodies.

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

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

Written by Ross Ahmadzai

1 Nov, 2023

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