Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013SLI 2013 No 280 [F2013L02104]-Concluded matters [2015] AUSStaCSDLM 157 (19 August 2015)

• Chapter 2
• Concluded matters

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Chapter 2

Concluded matters

This chapter sets out matters which have been concluded to the satisfaction of the committee based on responses received from ministers or relevant instrument-makers.

Correspondence relating to these matters is included at Appendix 1.

Instrument	Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013SLI 2013 No. 280 [F2013L02104]
Purpose	Sought to amend the Migration Regulations 1994 to implement the Government's intention to ensure that persons who arrive in Australia without visas are not granted permanent protection via a Subclass 866 (Protection) visa
Last day to disallow	Disallowed 27 March 2014
Authorising legislation	Migration Act 1958
Department	Immigration and Border Protection
Scrutiny principle	Standing Order 23(3)(a)
Previously reported in	Delegated legislation monitor No. 6 of 2014

Same in substance

The committee commented as follows: This instrument introduced a new visa criterion, such that a Subclass 866 (Protection) visa can only be granted to a person who:

• held a visa that was in effect on their last entry to Australia; and

• is not an unauthorised maritime arrival (UMA); and

• was immigration cleared on the applicant's last entry into Australia.

The explanatory statement (ES) states that the instrument was made in response to the Senate's disallowance of the Migration Amendment (Temporary Protection Visa) Regulation 2013 (on 2 December 2013), which had reintroduced Temporary Protection Visas (TPVs).

Whereas the previous instrument introduced TPVs as the visa to be granted to all UMAs, with a condition that they could not access the Subclass 866 (Protection) visas, the new instrument instead placed that condition on the Subclass 866 (Protection) visas.

Section 48 of the Legislative Instruments Act 2003 places limitations on the remaking of instruments after disallowance, including that an instrument that is 'the same in substance' as a disallowed instrument may not be remade within six months after that disallowance (unless the House that disallowed the instrument rescinds the disallowance resolution or otherwise approved the making of the second instrument).

Noting the minister's advice that legal advice was obtained on this issue, the committee requested further advice from the minister as to whether the UMA Regulation was the same in substance as the disallowed Migration Amendment (Temporary Protection Visa) Regulation 2013.

Minister's response

The Minister for Immigration and Border Protection advised:

As previously indicated, legal advice was obtained on the issue of whether the UMA Regulation was the same in substance as the disallowed regulation and the instrument was prepared in full cognisance of section 48 of the Legislative Instruments Act 2003.

Consistent with the usual and long-established practice, I decline to give the Committee a copy of the legal advice.

Committee's response

The committee thanks the minister for his response. Noting that the instrument was disallowed by the Senate on 27 March 2014, the committee has concluded its examination of the instrument.

However, as the committee has noted on previous occasions, there exists no general government policy or practice which prevents ministers or departments from providing information containing legal (or any other) advice to the Senate and its committees.

While the Senate has indicated some measure of acceptance of certain public interest immunity grounds for refusals to disclose information (in cases where a particular harm to the public interest is identified), it has consistently rejected any such refusals made simply on the basis that the requested information would disclose legal or other advice to government or a department.^[1]

Further, the committee notes past occasions where it has sought and been provided with legal advice on matters of relevance to the application of the committee's scrutiny principles.^[2]

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^[1] A full account of the Senate's approach to such matters may be found in Odgers' Australian Senate Practice (13th ed.), pp 595–625.

^[2] See for example Delegated legislation monitor No. 2 of 2014, entries on Veterans' Entitlements (Actuarial Certificate – Life Expectancy Income Stream Guidelines) Determination 2013 [F2013L00671] and Veterans' Entitlements (Actuarial Certificate – Lifetime Income Stream Guidelines) Determination 2013 [F2013L00670], pp 6–9.