Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2013-2014
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
Migration Amendment (Humanitarian Visa Intake) Bill 2014
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator Hanson-Young)
MIGRATION AMENDMENT (HUMANITARIAN VISA INTAKE) BILL 2014
Outline
The Bill amends the Migration Act 1958 (the Act) to ensure that the Minister of the day is
unable to grant fewer than 20,000 humanitarian visas per financial year.
As it stands the Executive is responsible for determining the migration programme and the
total number of visas to be issued under each subclass annually. The purpose of this Bill is to
increase the total number of humanitarian visas issued each year by amending the Act to
prevent the preclusion of processing or granting a visa at any time in a financial year when
fewer than 20,000 humanitarian visas have been granted. The Bill affords greater
transparency by requiring the Minister to make quarterly statements to Parliament setting out
how many humanitarian visas of each class have been granted.
This amendment responds to an urgent humanitarian crisis in the Middle East which has led
to millions of people being displaced. Australia has obligations under the Refugee
Convention to provide sanctuary to those in need. The best way to do that is by increasing the
refugee intake and committing to resettle those in genuine need of protection.
NOTES ON CLAUSES
Clause 1 - Short Title
1. This is a formal provision specifying the short title.
Clause 2 - Commencement
2. The Bill's provisions are to commence the day after it receives the Royal Assent.
Clause 3 - Schedules
3. This clause provides that an Act that is specified in a Schedule is amended or repealed as
set out in that Schedule, and any other item in a Schedule operates according to its terms.
1
Schedule 1 - Migration Act 1958
Item 1
4. Item 1 inserts a definition of "humanitarian visa" into the Act. As defined, "humanitarian
visa" means: a visa, a criterion (or part of a criterion) for which may be satisfied if a
person:
i. is subject to persecution; or
ii. is registered as being of concern to the United Nations High Commissioner for
Refugees; or
iii. has been determined to be a refugee under the Refugee Convention as amended by
the Refugee Protocol.
This definition is intended to cover humanitarian visas provided for in the Act, such as
protection visas, as well as classes of humanitarian visas prescribed by the regulations.
Item 2
5. Section 39 of the Act enables the Minister to limit the number of visas of particular
classes that may be granted each financial year. This section also stipulates that if the
limit prescribed by the Minister is reached then all undecided applications will be taken
not to have been made. Item 2 adds a new subsection which exempts any subclass of
humanitarian visa from being subject to the limit if fewer than 20,000 humanitarian visas
have been granted in that financial year.
Item 3
6. Section 86 of the Act defines the effect of visa limits set under Section 85. Section 86
prevents the granting of visas in the capped class; however it does not mean that
applications exceeding the cap are to be refused and does not preclude lodgement of
applications, assessments/processing of applications or refusal of visas under other
regulatory provisions.
2
Item 3 inserts, after section 86, a new subsection 86A(1) which exempts any class of
humanitarian visa from being subject to the cap when fewer than 20,000 humanitarian
visas have been granted in the financial year.
New subsection 86A(2) requires that each quarter, the Minister must provide each House
of the Parliament with an update on the number of humanitarian visas granted under each
class or subclass during the previous quarter. This amendment will ensure greater
transparency and parliamentary oversight in term of setting the number of humanitarian
visa granted each financial year.
New subsection 86A(3) specifies the timeframe in which the Minister must provide its
quarterly update. Under this amendment the Minister will be required to present the
statement within 15 sitting days of that House after the end of the previous quarter.
3
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration Amendment (Humanitarian Visa Intake) Bill 2014
This Bill is 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
The purpose of this Bill is to increase the total number of humanitarian visas issued each year
by amending the Act to prevent the preclusion of processing or granting a visa at any time in
a financial year when fewer than 20,000 humanitarian visas have been granted.
The Bill affords greater transparency by requiring the Minister to make quarterly statements
to Parliament setting out how many humanitarian visas of each class have been granted.
Human rights implications
This Bill does not negatively engage any of the applicable rights or freedoms.
However, the Bill does positively engage with the rights and freedoms contained in the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, the International Covenant on Civil and Political Rights and Australia's
obligations under the Refugee Convention and its Protocol.
This Bill seeks to increase Australia's humanitarian intake to ensure that people who are
fleeing war, torture and persecution are able to apply for and be granted humanitarian visas if
the Minister has granted fewer than 20,000 visas in the specified financial year. Australia has
protection obligations which are engaged under the Refugee Convention, the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the
4
International Covenant on Civil and Political Rights. This Bill will ensure that these human
rights obligations are upheld by enabling Australia to accept more refugees.
Conclusion
This Bill is compatible with human rights as it does not raise any negative human rights
issues.
Senator Hanson-Young
5