Migration Act 1958-Specification of Class of Persons Defined as Fast Track Applicants 2016/010 [F2016L00377]-Response required [2016] AUSStaCSDLM 125 (3 May 2016)

Instrument	Migration Act 1958 - Specification of Class of Persons Defined as Fast Track Applicants 2016/010 [F2016L00377][1]
Purpose	Defines non-citizen persons as fast track applicants
Last day to disallow	Exempt
Authorising legislation	Migration Act 1958
Department	Immigration and Border Protection
Scrutiny principle	Standing Order 23(3)(a) and (d)

Background

This instrument defines a class of persons who are fast track applicants for the purpose of paragraph 5(1)(b) of the Migration Act 1958 (the Migration Act). The committee understands the instrument to be exempt from disallowance by virtue of its inclusion in the table in section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015 [F2015L01475] (the exemption regulation).^[2]

The exemption regulation repealed and replaced the Legislative Instruments Regulations 2004, and provides for exemptions from aspects of the Legislation Act 2003, including its provisions relating to disallowance and sunsetting. The exemption regulation was required to implement some of the changes introduced by the Acts and Instruments (Framework Reform) Act 2015, which commenced on 5 March 2016 (and which saw the Legislative Instruments Act 2003 renamed the Legislation Act 2003).

Sections 9 and 10 of the exemption regulation prescribe the particular instruments and classes of instrument that are not subject to disallowance under the Legislation Act 2003. In its report on the exemption regulation, the committee noted that the

item-by-item description of section 10 in the ES to the regulation provided justifications for each exemption of particular instruments from disallowance, explaining why their particular nature or character required them to be the exempt from disallowance. However, no such justification was provided for item 20 of the table in section 10, which exempted from disallowance instruments (other than regulations) made under certain parts (including Part 1) of the Migration Act and Migration Regulations 1994.

The committee therefore sought information from the Attorney-General in relation to the justification for exempting instruments under item 20 of the table in section 10 from disallowance.

In response, the Attorney-General advised:

It is appropriate to continue to exempt the relevant instruments from disallowance. These instruments are crucial to the operation of the migration program. Continuing to exempt such instruments from disallowance ensures certainty in operational matters, as well as certainty for the rights and obligations of individuals with regard to visa and migration status.
Many of these instruments support the machinery of the migration program by providing for administrative matters, such as the form required to make a valid visa application, the manner and place for lodging applications and appropriate course qualifications or language proficiency. In addition to ensuring certainty in the operation of the immigration program, these instruments are largely administrative in nature, and therefore would not ordinarily be considered legislative instruments under the Legislative Instruments Act.
I am also concerned that if these instruments were subject to disallowance, the Government would be less agile in addressing issues relating to trends in global population movements.^[3]

The Attorney-General also provided the committee with the following examples of the nature and purpose of instruments made under Part 1of the Migration Act:

• authorisation of officers for certain purposes;

• approved places of immigration detention; and

• appointment of ports.

In concluding the matter, the committee noted the Attorney-General's advice that exempting such instruments from disallowance ensures certainty in operational matters and provides for administrative matters to support the machinery of the migration program.

Exemption of instrument from disallowance

As noted above, the purpose of the instrument is to define a class of persons as fast track applicants for the purposes of paragraph 5(1)(b) of the Migration Act.

Paragraph 6 of the ES to the instrument states:

Under section 42 of the Legislation Act 2003, the Instrument is subject to disallowance...

However, as set out above, the instrument is made under Part 1 of the Migration Act, and the committee therefore understands it to be exempt from disallowance by virtue of section 10 of the exemption regulation.

With reference to the Attorney-General's previous advice about the nature of instruments made under Part 1 of the Migration Act, and the examples provided of the nature and purpose of such instruments, the committee notes that the instrument provides a substantive definition relating to classes of persons who are fast track applicants for the purposes of the Migration Act. In this respect, it is unclear to the committee that the instrument is properly characterised as providing merely for 'administrative matters to support the machinery of the migration program', so as to justify its exemption from disallowance (and thereby being effectively removed from the effective oversight of the Parliament).

The committee requests the advice of the minister in relation to this matter.

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[1] The committee notes that the issue raised also applies to two recent exempt instruments: Migration Act 1958 - Specification of Class of Persons Defined as Fast Track Applicants 2016/007 [F2016L00455]; and Migration Act 1958 - Specification of Class of Persons Defined as Fast Track Applicants 2016/008 [F2016L00456].

[2] The committee reported on the exemption regulation in Delegated legislation monitor No. 14 of 2015 (11 November 2015), pp 8–9.

[3] Delegated legislation monitor No. 16 of 2015 (2 December 2015), pp 30–33 and Appendix 1.