Migration Act 1958-Determination of Protection (Class XA) and Refugee Humanitarian (Class XB) Visas 2014-IMMI 14/117 [F2014L01819]-Concluded matters [2015] AUSStaCSDLM 59 (25 March 2015)

• Migration Act 1958 - Determination of Protection (Class XA) and Refugee Humanitarian (Class XB) Visas 2014 - IMMI 14/117 [F2014L01819]

Migration Act 1958 - Determination of Protection (Class XA) and Refugee Humanitarian (Class XB) Visas 2014 - IMMI 14/117 [F2014L01819]

Purpose	Operates to specify the Minister’s determination of at least the minimum total combined number of Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas that the Minister must take all reasonable practicable measures to ensure are granted for, the financial years commencing 2015, 2016, 2017 and 2018
Last day to disallow	26 March 2015
Authorising legislation	Migration Act 1958
Department	Immigration and Border Protection

[The committee first reported on this instrument in Delegated legislation monitor No. 1 of 2015]

Issue:

Insufficient information regarding consultation

Section 17 of the Legislative Instruments Act 2003 directs a rule-maker to be satisfied that appropriate consultation, as is reasonably practicable, has been undertaken in relation to a proposed instrument, particularly where that instrument is likely to have an effect on business. Section 18, however, provides that in some circumstances such consultation may be unnecessary or inappropriate. The ES which must accompany an instrument is required to describe the nature of any consultation that has been carried out or, if there has been no consultation, to explain why none was undertaken (section 26). With reference to these requirements, the committee notes the ES for the instrument states:

Under section 18(2)(b) of the Legislative Instruments Act 2003, consultation was considered inappropriate due to the Instrument being required as a matter of urgency.

The committee also notes the instrument will have a beneficial impact by:

...[raising] the minimum combined total number of Protection (Class XA) and Refugee and Humanitarian (Class XB) visas that the Minister must take all reasonably practicable measures to ensure are granted.

However, the increase commences in the financial year starting 1 July 2017. There is no change from the existing visa numbers for the financial years starting 1 July 2015 and 1 July 2016. It is not immediately apparent, therefore, why the instrument was required as a matter of urgency. The committee's expectations regarding the provision of reasoning in cases where consultation has not been undertaken are set out in the 'Guideline on consultation' in Appendix 2 of this report. In particular, the committee would generally expect the ES to explain the reasoning as to why the instrument was considered urgent (as opposed to, for example, it being convenient or preferable not to undertake consultation).

[The committee therefore requested further information from the minister; and requested that the ES be updated in accordance with the requirements of the Legislative Instruments Act 2003].

MINISTER'S RESPONSE:

The Minister for Immigration and Border Protection advised that, as part of the government's border protection reform agenda:

The Instrument was required as a matter of urgency because the debating of the Resolving the Legacy Caseload Bill presented an opportunity to complete portfolio legislative priorities by the end of the parliamentary year. The timing of the instrument had the benefit of giving Senators an overview of related legislation, without which they may not have appreciated the interdependencies of the measures.

The minister further advised:

Consultation for the Instrument specifically was considered unnecessary because there is a long-established annual consultation process that allows individuals, business, organisations, states and territories, government departments and senior ministers to express their views on the size and composition of the Humanitarian Programme. Every year, the department publishes a discussion paper and invites the public to make submissions on the Humanitarian Programme. The department consults state and territory governments and other government agencies, as well as peak refugee and humanitarian bodies. It also considers the advice of the United Nations High Commissioner for Refugees on global resettlement needs and priorities. These consultations inform the government's decisions on the size and composition of the Humanitarian Programme in the year ahead.

COMMITTEE RESPONSE:

The committee thanks the minister for his response.

The committee notes the minister's response could be taken as an indication that the instrument was required as a matter of convenience at the time the Resolving the Legacy Caseload Bill was being debated (rather than necessarily being considered a matter of urgency). However, the committee also notes the minister's advice that specific consultation on the instrument was considered unnecessary because of the wider annual consultation undertaken on the Humanitarian Program.

The committee has therefore concluded its examination of the instrument.