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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
MIGRATION AMENDMENT (BRIDGING VISA CONDITIONS) BILL 2023
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
(Circulated by authority of the Minister for Immigration, Citizenship and Multicultural
Affairs, the Honourable Andrew Giles MP)
Migration Amendment (Bridging Visa Conditions) Bill 2023
OUTLINE
The Migration Amendment (Bridging Visa Conditions) Bill 2023 (the Bill) amends the
Migration Act 1958 (the Migration Act) and the Migration Regulations 1994 (the Migration
Regulations) to ensure non-citizens for whom there is no real prospect of removal from
Australia becoming practicable in the reasonably foreseeable future and who are therefore
not capable of being subject to immigration detention under subsections 189(1) and 196(1)
of the Migration Act following the High Court's orders of 8 November 2023 in NZYQ v
Minister for Immigration, Citizenship and Multicultural Affairs (NZYQ) and who do not
otherwise hold a visa are subject to appropriate visa conditions on any bridging visa granted
to them following release.
The objective of the Bill is to keep the community safe, and to strengthen relevant migration
laws to respond to the decision in NZYQ.
Government amendments
These Government amendments (QN100) include amendments to the Bill to:
• provide for mandatory curfew and electronic monitoring in certain circumstances;
• enhance and strengthen other visa conditions, including in relation to members of
the NZYQ-affected cohort ;
• remove provisions that would otherwise provide that section 4K of the Crimes Act
1914 does not apply to certain offences that are continuing offences; and
• make other amendments as described in the notes on clauses.
These Government amendments will further strengthen the measures in the Bill.
The amendments:
• amend proposed subclause 070.612A to provide if a visa is granted to a visa holder
under reg 2.25AA or 2.25AB of the Migration Regulations and if there is no real
prospect of the removal of the visa holder from Australia becoming practicable in
the reasonably foreseeable future, proposed visa conditions 8620 and 8621 must be
imposed unless the Minister is satisfied that the holder does not pose a risk to the
community. .
The amendments also create the following additional visa conditions:
• New visa condition 8622 provides that if the holder has been convicted of an offence
that involves a minor or any other vulnerable person, the holder must not perform
any work, or participate in any regular organised activity, involving more than
incidental contact with a minor or any other vulnerable person.
• New visa condition 8623 provides that if the holder has been convicted of an offence
that involves a minor or any other vulnerable person, the holder must not go within
200 metres of a school, childcare centre or day care centre.
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• New visa condition 8624 provides that if the holder has been convicted of an offence
involving violence or sexual assault, the holder must not contact, or attempt to
contact, the victim of the offence or a member of the victim's family.
FINANCIAL IMPACT STATEMENT
The amendments of the Bill have a low financial impact.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
A Statement of Compatibility with Human Rights has been completed in relation to the
government amendments of the Bill. The Statement assesses that the amendments are
partially compatible with Australia's human rights obligations. A copy of the Statement is
at Attachment A.
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AMENDMENTS OF THE MIGRATION AMENDMENT (BRIDGING VISA
CONDITIONS) BILL 2023 (QN100)
NOTES ON AMENDMENTS
Amendment (1)--Schedule 1, item 4, page 5 (after line 19), after subsection 76B(1)
1. This amendment inserts a note under proposed subsection 76B(1). It notes that
section 4K of the Crimes Act 1914 applies to this offence.
Amendment (2)--Schedule 1, item 4, page 5 (lines 25 to 27), subsection 76B(3) to be
opposed
2. This amendment provides that Schedule 1, item 4, page 5 (lines 25 to 27),
subsection 76B(3) in the Bill is to be opposed. This would omit subsection 76B(3).
Amendment (3)--Schedule 1, item 4, page 8 (after line 6)
3. This amendment inserts a note under proposed subsection 76D(4). It notes that
section 4K of the Crimes Act 1914 applies.
Amendment (4)--Schedule 1, item 4, page 8 (lines 8 to 10), subsection 76D(5) to be
opposed
4. This amendment would omit subsection 76D(5).
Amendment (5)--Schedule 1, item 4, page 9 (lines 14 to 255)
5. This amendment substitutes and replaces proposed subsection 76E(4). As amended,
new subsection 76E(4) provides that The Minister must grant the non-citizen another
Subclass 070 (Bridging (Removal Pending)) visa (the second visa), under a prescribed
provision of the regulations, that is not subject to any one or more of the conditions
prescribed for the purposes of paragraph (1)(a) if:
a) the non-citizen makes representations in accordance with the invitation; and
b) the Minister is satisfied that the non-citizen does not pose a risk to the community.
Amendment (6)--Schedule 2, item 7, page 13 (line 4)
6. This amendment omits reference to condition 8619 and substitutes with reference to
visa conditions 8619, 8622 and 8623. This provides that new conditions 8622 and 8623 are
mandatory as provided for in amended subclause 070.612(1).
Amendment (7)--Schedule 2, item 8, page 13 (lines 10 - 15)
7. This amendment replaces and substitutes subclauses 070.612A(1) and (2).
8. As amended, the revised clauses provide:
(1) If subclause (3) applies to the visa, condition 8620 must be imposed unless the
Minister is satisfied that the holder does not pose a risk to the community.
(2) If subclause (3) applies to the visa, condition 8621 must be imposed unless the
Minister is satisfied that the holder does not pose a risk to the community.
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(2A) A condition imposed under subclause (1) or (2) is in addition to any other condition
imposed by another provision of this Division.
Amendment (8)--Schedule 2, item 8, page 13 (after line 21) after clause 070.612A
9. This amendment inserts new clause 070.612B after proposed clause 070.612A.
10. The new clause provides that if the holder has been convicted of an offence involving
violence or sexual assault, condition 8624 must be imposed in addition to any other
condition imposed by another provision of this Division.
Amendment (9)--Schedule 2, page 17 (after line 14), at the end of the Schedule
11. This amendment inserts new visa conditions 8622, 8623 and 8624.
12. New visa condition 8622 provides that if the holder has been convicted of an offence
that involves a minor or any other vulnerable person, the holder must not perform any work,
or participate in any regular organised activity, involving more than incidental contact with
a minor or any other vulnerable person.
13. New visa condition 8623 provides that if the holder has been convicted of an offence
that involves a minor or any other vulnerable person, the holder must not go within 200
metres of a school, childcare centre or day care centre.
14. New visa condition 8624 provides that if the holder has been convicted of an offence
involving violence or sexual assault, the holder must not contact, or attempt to contact, the
victim of the offence or a member of the victim's family.
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Supplementary Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act
2011
Government Amendments to the Migration Amendment (Bridging Visa Conditions)
Bill 2023
These amendments 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.
Parliamentary Amendments to the Migration Amendment (Bridging Visa
Conditions) Bill 2023
These amendments 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 parliamentary amendments
The Migration Amendment (Bridging Visa Conditions) Bill 2023 (the Bill) amends the
Migration Act 1958 (the Migration Act) and the Migration Regulations 1994 (the
Regulations) to ensure that members of the NZYQ-affected cohort are managed in the
community in a way that supports community safety objectives and enables the
management of the cohort to a removal outcome once removal becomes reasonably
practicable.
The amendments:
• amend proposed subclause 070.612A to provide if a visa is granted to a visa holder
under reg 2.25AA or 2.25AB of the Migration Regulations and if there is no real
prospect of the removal of the visa holder from Australia becoming practicable in
the reasonably foreseeable future, proposed visa conditions 8620 and 8621 must be
imposed unless the Minister is satisfied that the holder does not pose a risk to the
community. .
The amendments also create the following additional visa conditions:
• New visa condition 8622 provides that if the holder has been convicted of an offence
that involves a minor or any other vulnerable person, the holder must not perform
any work, or participate in any regular organised activity, involving more than
incidental contact with a minor or any other vulnerable person.
• New visa condition 8623 provides that if the holder has been convicted of an offence
that involves a minor or any other vulnerable person, the holder must not go within
200 metres of a school, childcare centre or day care centre.
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• New visa condition 8624 provides that if the holder has been convicted of an offence
involving violence or sexual assault, the holder must not contact, or attempt to
contact, the victim of the offence or a member of the victim's family.
Human rights implications
These amendments engage the following rights:
• The rights of equality and non-discrimination in Articles 2 and 26 of the
International Covenant on Civil and Political Rights (ICCPR) and Article 2 of the
International Covenant on Economic, Social and Cultural Rights (ICESCR)
• The right to privacy in Article 17 of the ICCPR
• Right to liberty in Article 9 of the ICCPR
• The right to freedom of movement in Article 12 of the ICCPR
• The right to the presumption of innocence and minimum guarantees in criminal
proceedings in Article 14 of the ICCPR
• The right to freedom of assembly and association contained in Article 22 of the
ICCPR
• The right to work in Article 6 of the ICESCR.
These amendments engage the above rights by strengthening the requirements that were
included in the Bill in order to further protect the Australian community.
A prohibition on visa holders contacting the victim of their offending or the family of the
victim is necessary, reasonable and proportionate and similar to measures which could
imposed under AVOs and like instruments.
The new conditions involving exclusions zones around schools and the prohibition on
working with children would be applied only where the person has been convicted of an
offence that involves a minor or any other vulnerable person, and therefore would be a
necessary, reasonable and proportionate limitation on relevant rights.
Treating each day of violation of a visa condition as a separate offence may not be
compatible with rights under Articles 9 and 14, and in relation to non-discrimination.
The amendments make the imposition of conditions relating to curfews and electronic
bracelets mandatory rather than discretionary, but only if the Minister is satisfied that the
holder does not pose a risk to the community. This helps ensure that the imposition of the
conditions is reasonable, necessary and proportionate to the individual circumstances.
However, there is a risk of incompatibility with rights relating to discrimination in
circumstances where Australian offenders would not be subjected to the same conditions.
The Government considers that these strengthened requirements are appropriate to the
objectives of protecting community safety.
Conclusion
The amendments to the Migration Amendment (Bridging Visa Conditions) Bill 2023 limit
human rights in order to protect the Australian community.
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The Honourable Andrew Giles MP
Minister for Immigration, Citizenship and Multicultural Affairs
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