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MIGRATION AMENDMENT REGULATION 2012 (NO. 4) (SLI NO 133 OF 2012)

EXPLANATORY STATEMENT

Select Legislative Instrument 2012 No. 133

Issued by the Minister for Immigration and Citizenship

Migration Act 1958

Migration Amendment Regulation 2012 (No. 4)

Subsection 504(1) of the Migration Act 1958 (the Act) provides, in part, that the
Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

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

The purpose of the Regulation is to amend the Migration Regulations 1994 to ensure that:

 

 

A Statement of Compatibility with Human Rights has been completed for the Regulation, in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011.  The Statement's overall assessment is that the measures in the Regulation are compatible with human rights because they do not raise any human rights issues.  A copy of the Statement is at Attachment B.

 

Details of the Regulation are set out in Attachment C.

 

The Office of Best Practice Regulation (the OBPR) has been consulted in relation to the amendments made by the Regulation and advises that the regulation is not likely to have a direct effect, or substantial indirect effect, on business and is not likely to restrict competition.  The OBPR consultation reference is 13951.

The Australian Customs and Border Protection Service (Customs) has been consulted on the issue of whether or not ships on the Australian International Shipping Register (AISR) will be considered to be imported or entered for home consumption under the Customs Act 1901.  Customs and the Department of Immigration and Citizenship also consulted about how the two agencies will work together to identify AISR vessels following implementation of the shipping reform package. 

The Department of Infrastructure and Transport has been consulted to provide advice about the policy intention of the AISR and, more broadly, the shipping reforms.  The Department of Infrastructure and Transport also consulted widely both internally and externally with the House of Representatives Committee on Infrastructure, Transport, Regional Development and Local Government Inquiry, the Shipping Policy Advisory Group and various Industry Reference Groups in relation to development of the government's Stronger Shipping for a Stronger Economy reforms package.

The Department of Education, Employment and Workplace Relations has also been consulted in relation to the applicability of the Fair Work Act 2009 and the revised coastal shipping licensing arrangements. 

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

ATTACHMENT A

 

POWERS OF DELEGATION

Subsection 504(1) of the Migration Act 1958 (the Act) provides, in part, that the     Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

In addition, the following provisions of the Act may apply:

 

*         subsections 29(2) and (3) of the Act provide that a visa to travel to, enter and remain in Australia may be one to travel to and enter Australia during a prescribed or specified period;

*         subsection 31(3) of the Act provides that the regulations may prescribe criteria for a visa of a specified class;

*         subsection 31(4) of the Act provides that the regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both;

*         subsection 43(1A) of the Act provides that, subject to the regulations, a maritime crew visa that is in effect is permission for the holder to enter Australia at certain places and in certain ways;

*         paragraph 46(1)(b) of the Act provides that an application for a visa is valid if, and only if, it satisfies the criteria and requirements prescribed by the regulations under section 46 of the Act;

*         subsection 46(3) of the Act provides that the regulations may prescribe criteria to be satisfied for an application of a specified class to be a valid application;

*         subsection 46(4) of the Act provides that, without limiting subsection 46(3), the regulations may also prescribe:

 

o   the circumstances that must exist for an application for a visa of a specified class to be a valid application;

o   how an application for a visa of a specified class must be made;

o   where an application for a visa of a specified class must be made; and

o   where an applicant must be when an application for a visa of a specified class is made.

 

ATTACHMENT B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

This amendment to the Migration Regulations 1994 -change to definition of Non-military Ship 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 of the Regulation

This change to the Migration Regulations 1994 (the Regulations) will enable foreign crew members on vessels registered on the Australian International Shipping Register to be able to access Maritime Crew visas.  This outcome is to be achieved by amending the current definition of 'non-military ship' in Regulation 1.03 of the Regulations and amending certain visa cessation provisions in Schedule 2 to the Regulations. 

This change is being undertaken as part of the Government's Stronger Shipping for a Stronger Economy reforms.

Human rights implications

This item does not engage any of the applicable rights or freedoms.

Conclusion

This item is compatible with human rights as it does not raise any human rights issues.

 

ATTACHMENT C

 

Details of the Migration Amendment Regulation 2012 (No. 4)

 

Section 1 - Name of Regulation

 

This section provides that the title of the Regulation is the Migration Amendment Regulation 2012 (No. 4).

 

Section 2 - Commencement

 

This section provides for the Regulation to commence on 1 July 2012.

 

Section 3 - Amendment of Migration Regulations 1994

 

This section provides that the Migration Regulations 1994 (the Principal Regulations) are amended as set out in Schedule 1.

 

Schedule 1 - Amendments

Item [1] - Regulation 1.03 - definition of Australian International Shipping Register

This item inserts a new definition in regulation 1.03 of the Principal Regulations that provides that the Australian International Shipping Register means the Register established by subsection 56(2) of the Shipping Registration Act 1981. 

The purpose of this amendment is to provide a definition of the Australian International Shipping Register (AISR), to be established under the Shipping Registration Act 1981, for the purposes of the Principal Regulations.

The AISR is one measure in the Government's Stronger Shipping for a Stronger Economy reform agenda, which is aimed at revitalising the Australian shipping industry and increasing the number of Australian-flagged vessels.  Australian-owned vessels engaged in predominantly international trading may be registered in the AISR.

Item [2] - Regulation 1.03, definition of non-military ship

This item substitutes the definition of non-military ship in regulation 1.03 of the Principal Regulations. 

The definition of non-military ship included ships that are engaged in commercial trade, the carriage of passengers for reward, are owned and operated by a foreign government for the purposes of scientific research or have been accorded public vessel status by the Department of Foreign Affairs and Trade.  However, the definition excluded ships that have been imported in accordance with section 49A of the Customs Act 1901 (the Customs Act) or entered for home consumption in accordance with section 71A of that Act. 

The new definition of non-military ship is the same as the previous definition except that ships that have been imported or entered for home consumption under the Customs Act, but which are registered in the AISR, will not be excluded from the definition.  Ships that have been imported or entered for home consumption under the Customs Act but which are not registered in the AISR will continue to be excluded from the definition of non-military ship.

The purpose of the amendment is to distinguish between ships that are imported or entered for home consumption and are registered in the AISR and those ships that are imported or entered for home consumption under the Customs Act that are not registered in the AISR. 

This distinction is relevant to whether or not the MCV holder may work in Australia on the non-military vessel they are crewing.

Condition 8113, which is a condition attached to the MCV, limits the holder to working in Australia on a non-military ship.  Where a ship is imported or entered for home consumption under the Customs Act and is not registered on the AISR, it will not be a non-military ship and so an MCV-holding crew member of that ship could not lawfully work on that ship in Australia.  However, as vessels that are imported or entered for home consumption under the Customs Act and registered in the AISR would be non-military ships, the amendment means that MCV-holding crew members would be able to lawfully work on those ships in Australia.

Item [3] - Schedule 2, clause 988.512, table, item 2, paragraph (b)

This item omits the words "71A of that Act" and inserts the words "section 71A of that Act but is not registered in the Australian International Shipping Register" in clause 988.512, table, item 2, paragraph (b) of Schedule 2 to the Principal Regulations.

The purpose of the amendment is to fix a typographical error by inserting the missing word 'section' in reference to section 71A of the Customs Act and to create a distinction so that Item 2 of the table does not apply in reference to ships that are imported or entered for home consumption under the Customs Act and that are not registered in the AISR.

Clause 988.512 provides for when an MCV ceases to be in effect.  The table in that clause provides for different sets of circumstances and when the MCV ceases to be in effect in those circumstances.  The current set of circumstances are where the MCV holder has entered Australia as either the member of the crew of a non-military ship or the spouse, de facto partner or dependent child of a member of a non-military ship and the ship has been imported or entered for home consumption under the Customs Act. 

The Regulation adds the additional circumstance that the non-military ship is not registered in the AISR. 

Item [4] - Schedule 2, clause 988.512, table, after item 2

This item inserts new item 2A in clause 988.512, table, after item 2 of Schedule 2 to the Principal Regulations.

New item 2A provides for when an MCV ceases to be in effect when each of the following circumstances apply:

o   Five days after the day on which the non-military ship ceases to be registered in the AISR; or

o   if an authorised officer decides, within those five days, to allow the person a longer period of up to 30 days after the day on which the non-military ship ceases to be registered in the AISR - that longer period; or

o   (only where the MCV holder has not departed Australia before the longest of these periods that applies to the holder) if the holder holds another visa that is in effect - the day on which that other visa ceases.

Those periods are the same as the periods set out in item 2 of the table except that, instead of the visa cessation date being calculated by reference to the day the non-military ship was imported or entered for home consumption, the visa cessation date is calculated by reference to the day on which the non-military ship ceased to be registered in the AISR.

The purpose of both existing item 2 and new item 2A of the table is to allow a period of reasonable time for an MCV holder or their spouse, de facto partner or dependent child, to either obtain further employment on a non-military ship or leave Australia.

 

 

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