Migration Amendment (Credit Card Surcharge) Regulation 2014 [F2014L00421]-Concluded matters [2014] AUSStaCSDLM 126 (25 June 2014)

• Migration Amendment (Credit Card Surcharge) Regulation 2014 [F2014L00421]

Migration Amendment (Credit Card Surcharge) Regulation 2014 [F2014L00421]

Purpose	Amends the Migration Regulations 1994 to allow the department to recover the cost of certain administrative fees, by charging a credit card surcharge on applicants who pay an instalment, or part of an instalment, of their visa application charge with a credit card
Last day to disallow	14 July 2014
Authorising legislation	Migration Act 1958
Department	Immigration and Border Protection

[The committee first reported on this instrument in Monitor No. 5 of 2014. The committee raised concerns and sought further information in relation to:

(a) drafting; and

(b) subdelegation of legislative power;

Those comments are reproduced below, followed by the committee's response to the minister's correspondence].

ISSUE:

(a) Drafting

Item 2 of Schedule 1 of this instrument inserts a new regulation 5.43 into the Migration Regulations 1994, at the end of Division 5.7 of Part 5. The committee notes that there appears to be a current regulation 5.43 in the Migration Regulations, at the beginning of Division 5.8 of Part 5. As a consequence, there are now two regulations numbered 5.43 in the regulations, and the committee notes that the existence of two regulations with the same number could impact on the clarity and useability of the regulations [the committee brought this matter to the attention of the minister (Monitor No. 5 of 2014)].

MINISTER'S RESPONSE:

The Minister for Immigration and Border Protection thanked the committee for drawing his attention to the typographical error. The minister confirmed that the Department was in the process of rectifying the issue. The minister also advised that the Office of Parliamentary Counsel had advised him that 'the regulations operate effectively in the interim despite the typographical error'.

COMMITTEE RESPONSE:

The committee thanks the minister for his response and has concluded its interest in this matter.

ISSUE:

(b) Subdelegation of legislative power

New regulation 5.43 creates a liability for visa applicants to pay a credit card surcharge for visa applications. New subregulation 5.43(4) provides that the minister may specify, in a legislative instrument, circumstances in which the credit card surcharge (a) must be waived, (b) may be waived, (c) must be refunded or (d) may be refunded.

The committee notes that section 504 of the Migration Act 1958 delegates to the Governor-General the Parliament's power to make regulations under the Act. Paragraph 504(1)(a) provides a specific power to make regulations in relation to the charging of fees, and paragraph 504(1)(b) provides a specific power to make regulations providing for the remission, refund or waiver of specified fees (or for exempting persons from the payment of such fees). In new regulation 5.43 the Governor-General has provided for the imposition of a credit card surcharge. In new subregulation 5.43(4), however, the Governor-General subdelegates to the minister the power (in effect) to determine circumstances in which the credit card surcharge will not apply. In the committee's view, there is a question as to whether this goes to the heart of the power to impose the credit card surcharge (and so offends the rule against subdelegation).

The committee notes that, while subdelegation can be authorised by an empowering Act, there does not appear to be any power in the Migration Act to subdelegate as in this case [the committee requested further information from the minister (Monitor No. 5 of 2014)].

MINISTER'S RESPONSE:

The committee request further information about new subregulation 5.43(4) of the Migration Regulations 1994, specifically regarding the power in the Migration Act 1958 (the Migration Act) to subdelegate to the Minister the power (in effect) to determine circumstances in which the credit card surcharge may or must be waived or refunded.
Subsection 504(2) of the Migration Act authorises the making of regulation 5.43(4) conferring a power on the Minister to specify matters in an instrument in writing.
I note that subsection 14(2) of the Legislative Instruments Act 2003 (the LI Act) provides, in effect, that, unless a contrary intention appears, Regulations may not make provision in relation to a matter by applying, adopting or incorporating a matter in a non-disallowable legislative instrument after the empowering regulation is made.
However, subsection 504(2) of the Migration Act provides:
Section 14 of the Legislative Instruments Act 2003 does not prevent, and has not prevented, regulations whose operation depends on a country or other matter being specified or certified by the Minister in an instrument in writing made under the regulations after the taking effect of the regulations.
The effect of subsection 504(2) of the Migration Act is to provide a contrary intention to section 14 of the LI Act. Subsection 504(2) permits the making of regulations conferring a power on the Minister to specify matters in an instrument after the taking effect of the regulations.
Subregulation 5.43(4) provides in summary that the circumstances in which the credit card surcharge may or must be waived or refunded may be specified by the Minister in a legislative instrument. The circumstances to be specified by the Minister under subregulation 5.43(4) are 'matters' for the purposes of subsection 504(2) of the Migration Act.
Therefore, subsection 504(2) of the Migration Act authorises the making of regulation 5.43(4) conferring a power on the Minister to specify matters in an instrument in writing, including after the regulations take effect.

COMMITTEE RESPONSE:

The committee thanks the minister for his response and has concluded its interest in this matter.