Migration Amendment (Review of the Regulations) Regulation 2016 [F2016L01809] and Legislation (Exemptions and Other Matters) Amendment (Sunsetting and Disallowance Exemptions) Regulation 2016 [F2016L01897] [2017] AUSStaCSDLM 243 (8 September 2017)

---

Instrument	Migration Amendment (Review of the Regulations) Regulation 2016 [F2016L01809] Legislation (Exemptions and Other Matters) Amendment (Sunsetting and Disallowance Exemptions) Regulation 2016 [F2016L01897]
Purpose	Amends the Migration Regulations 1994 to introduce a new statutory review process; and amends the Legislation (Exemptions and Other Matters) Regulation 2015 to insert new exemptions from the sunsetting and disallowance schemes under the Legislation Act 2003
Authorising legislation	Migration Act 1958; Legislation Act 2003
Department	Immigration and Border Protection; Attorney-General's
Disallowance	15 sitting days after tabling (tabled Senate 29 November 2016 and 7 February 2017 respectively) The time to give a notice of motion to disallow expired on 28 March 2017 and 31 March 2017 respectively The committee gave notices of motion to disallow on 28 March 2017 and 31 March 2017 respectively The committee withdrew the notice of motion to disallow [F2016L01809] on 22 June 2017[1]
Scrutiny principle	Standing Order 23(3)(a)
Previously reported in	Delegated legislation monitors 1, 3 and 7 of 2017

Exemption from sunsetting

The committee previously commented as follows:

Migration Amendment (Review of the Regulations) Regulation 2016 [F2016L01809] (review regulation) amends the Migration Regulations 1994 (Migration Regulations) to introduce a new statutory review process. The process requires the Department

of Immigration and Border Protection to conduct periodic reviews of the Migration Regulations and to:

• commence the initial review within one year after 1 July 2017 and finish it within two years after the day the review begins; and

• commence a subsequent review every 10 years after 1 October 2017 and finish each review within two years after commencement of the review.

The ES to the review regulation states:

The purpose of the review requirement is to ensure that the Migration Regulations are kept up to date and provisions are in force for so long as they are needed. In this way, the Regulation provides a rigorous integrity measure to ensure the Migration Regulations are examined, and determined fit for purpose, on a regular and ongoing basis. Specifically, this ensures that the Migration Regulations remain subject to ongoing monitoring for their impact and relevance, while also benefitting from appropriate deregulation, including the removal of unnecessary, confusing or outdated provisions.

Item 10 of the Legislation (Exemptions and Other Matters) Amendment (Sunsetting and Disallowance Exemptions) Regulation 2016 [F2016L01897] (exemption regulation) amends the Legislation (Exemptions and Other Matters) Regulation 2015 to exempt the Migration Regulations from the sunsetting scheme under the Legislation Act 2003.

The committee notes that pursuant to section 50 of the Legislation Act 2003, but for the exemption regulation, the Migration Regulations would have been required to be re-made due to sunsetting on or before 1 October 2018.

The ES for the amending regulation states:

The Migration Regulations contain an alternative statutory review mechanism inserted by the Migration Amendment (Review of the Regulations) Regulation 2016, which requires the Department of Immigration and Border Protection to conduct periodic reviews of the Migration Regulations, including to:
• commence the initial review within one year after 1 July 2017 and finish it within two years after the day the review begins; and
• commence a subsequent review every 10 years after 1 October 2017 and finish each review within two years after commencement of the review.
For this reason, it is appropriate to provide an exemption from sunsetting for the Migration Regulations.

Neither the ES to the review regulation nor the exemption regulation provides information on the broader justification for the exemption of the Migration Regulations from sunsetting.

The committee also notes that the process to review and action review recommendations for instruments can be lengthy, and the committee expects departments and agencies to plan for sunsetting well in advance of an instrument’s sunset date.^[2]

The committee is concerned that neither the ES to the review regulation nor the exemption regulation provides information about whether a review of the Migration Regulations had commenced in light of the sunsetting date of 1 October 2018 and why, in effect, an additional year is required to conduct the initial review.

The committee requests the advice of the minister in relation to the above.

Attorney-General's initial response

The Attorney-General advised:

The Committee has sought further advice on the broader justification for the exemption of the Migration Regulations 1994 from sunsetting and information about the review process for the Migration Regulations.
The purpose of the sunsetting regime established by the Legislation
Act 2003 is to ensure that legislative instruments are kept up to date and only remain in force for as long as they are needed.
The Legislation Act does not specify any conditions or legal criteria that
I am required to consider in granting a sunsetting exemption. However, there is a long standing principle that sunsetting exemptions should only be granted where the instrument is not suitable for regular review under the Legislation Act. This principle is underpinned by five criteria:
• the rule-maker has been given a statutory role independent of the Government, or is operating in competition with the private sector;
• the instrument is designed to be enduring and not subject to regular review;
• commercial certainty would be undermined by sunsetting;
• the instrument is part of an intergovernmental scheme; and
• the instrument is subject to a more rigorous statutory review process.
I am satisfied that the review requirement inserted in the Migration Regulations provides a rigorous review process that meets the objective of ensuring that the Migration Regulations are kept up to date and are only in force for as long as they are needed. It enables the objectives of the Legislation Act to be met without incurring the significant systems, training and operational costs associated with remaking the Migration Regulations.
The Committee has also sought information about whether a review of the Migration Regulations had commenced in light of the sunsetting date of
1 October 2018 and why, in effect, an additional year is required to conduct the initial review.
I am advised by the Minister for Immigration and Border Protection that the Department has not commenced the review. According to regulation 5.44A of the Migration Regulations, the review is now to commence between 1 July 2017 and 30 June 2018.
Considering the width and breadth of the Migration Regulations, which currently consists of 1478 pages, these timeframes for the initial review were put in place to ensure that adequate resources and time are allocated.
The Committee may be interested to know that the Migration Regulations are amended numerous times each year to update policy settings for
the Australian immigration programmes. This has been the case since
the Migration Regulations commenced in September 1994. Redundant provisions were removed from the Migration Regulations in 2012.
The amendment history of the Migration Regulations is set out in the endnotes and now runs to more than 400 pages.

Committee's first response

The committee thanks the Attorney-General for his response.

The committee notes the advice of the Attorney-General and Minister for Immigration and Border Protection that the Department of Immigration and Border Protection has not commenced the review, and that timeframes for the initial review under the new process were put in place to ensure that adequate resources and

time are allocated. However, the Attorney-General's response does not provide information as to why, in effect, an additional year is required to conduct the initial review under the new process, noting that the sunsetting date for the Migration Regulations would have been 1 October 2018.

Recognising that the process to review and action review recommendations for instruments can be lengthy, the committee reiterates its expectation that departments and agencies plan for sunsetting well in advance of an instrument’s sunset date. The committee remains concerned that the effect of the introduction of the new process for review of the Migration Regulations is that the timeframes set in place by the sunsetting regime under the Legislation Act 2003 are avoided.

The committee requests the further advice of the ministers in relation to the above.

Minister's subsequent response

The Minister for Immigration and Border Protection advised:

The Committee requested further advice about why, in effect, an additional year is required to conduct the initial review under the new process, noting that the sun-setting date for the Migration Regulations 1994 (the Regulations) would have been 1 October 2018.
The Government's agenda includes a substantial reform of Australia's migration and citizenship framework, necessitating associated legislative change. As part of the Budget, an announcement was made in relation to improving technologies to manage our visa processing platform, and the Prime Minister and I have since made announcements about changes to Australian citizenship.
I am advised by the Attorney General that the Legislation Act 2003 provides the flexibility for sunsetting to be delayed. Relatively short delays such as 1 year are not inconsistent with the objective of the sun-setting regime, which is to ensure that legislative instruments are kept up to date and remain in force for only as long as they are needed.

Committee's second response

The committee thanks the Minister for his response.

The committee's request for advice in relation to these regulations arose from concerns about possible implications of the exemption of the Migration Regulations from the sunsetting requirements of the Legislation Act 2003 (LA).

The purpose of sunsetting is to ensure that legislative instruments are kept up to date and only remain in force for so long as they are needed. To achieve this goal, the LA provides that legislative instruments are automatically repealed after a fixed period of time (subject to some exceptions). This automatic repeal is called sunsetting and section 50 of the LA provides for the sunsetting of all instruments around the tenth anniversary of each instrument’s registration on the Federal Register of Legislation. This means that every ten years, if, after a review, it is assessed that an instrument is still required, an instrument is usually remade (with or without amendments). This process provides greater opportunity for Parliament to ensure the content of instruments is current and to ensure Parliament maintains effective and regular oversight of legislative instruments (including the possibility of parliamentary disallowance of the remade instrument).

In light of the above, where a regulation provides an exemption from sunsetting for

a particular instrument or a class of instruments, the committee is concerned about the potential implications of the exemption and why it is appropriate for such an exemption to be provided.

The committee acknowledges the Attorney-General's advice that the LA provides the flexibility for sunsetting to be delayed and that short delays such as one year are not inconsistent with the objective of the sunsetting regime. The committee also notes that the alternative statutory review mechanism inserted by the review regulation requires the Department of Immigration and Border Protection (the department)

to conduct periodic reviews of the Migration Regulations, similar to the 10‑year sunsetting cycle.

The committee further notes the justification provided by the minister for the exemption of the Migration Regulations from sunsetting:

The Government's agenda includes a substantial reform of Australia's migration and citizenship framework, necessitating associated legislative change. As part of the Budget, an announcement was made in relation to improving technologies to manage our visa processing platform, and the Prime Minister and I have since made announcements about changes to Australian citizenship.

The committee also notes the Attorney-General's advice that he was:

...satisfied that the review requirement inserted in the Migration Regulations provides a rigorous review process that meets the objective of ensuring that the Migration Regulations are kept up to date and are only in force for as long as they are needed.

However, it remains unclear to the committee why an extension was not sought to delay the sunsetting of the Migration Regulations for an additional year to allow time for the initial review of the Migration Regulations to be conducted as part of the sunsetting scheme of the LA rather than introducing the new sunsetting scheme contained in the review regulation.

In particular, the new process for review of the Migration Regulations introduced by these regulations does not include a statutory requirement to re-make the Migration Regulations after each review to ensure the Parliament maintains effective and regular oversight of the Migration Regulations.

The committee gave a protective notice of motion to disallow the Migration Amendment (Review of the Regulations) Regulation 2016 [F2016L01809] on

28 March 2017. This motion to disallow must be resolved or withdrawn within

15 sitting days after it was given otherwise the regulation will be deemed to be disallowed. Noting the information provided by the minister and Attorney-General to date, the committee has resolved, on this occasion, to withdraw the protective notice of motion for this regulation.

However, in light of the committee's concerns regarding the exemption of the Migration Regulations from the sunsetting requirements of the Legislation Act 2003 (as implemented by the Legislation (Exemptions and Other Matters) Amendment (Sunsetting and Disallowance Exemptions) Regulation 2016 [F2016L01897]);^[3] and the absence of a statutory requirement to re-make the Migrations Regulations after each review, the committee requests the further advice of the ministers in relation to the above.

Minister's further response

The Minister for Immigration and Border Protection advised:

Formal consultations between the Department of Immigration and Border Protection, the Office of Parliamentary Counsel and the Attorney-General's Department began in February 2016 in relation to the sunsetting of the Migration Regulations 1994 (the Migration Regulations). As a result of these discussions, and the briefing provided to me, I wrote to the Attorney-General seeking an exemption from the sunsetting regime.
The Attorney-General agreed to this proposal, on the condition that a review requirement was incorporated into the Migration Regulations.
This requirement was inserted by the Migration Amendment (Review of the Regulations) Regulation 2016 in November 2016.
The Committee has queried:
• why an extension was not sought to delay the sunsetting of the Migration Regulations for an additional year to allow time for the initial review of the Migration Regulations to be conducted as part of the sunsetting scheme; and
• why the new process for review of the Migration Regulations introduced by these regulations does not include a statutory requirement to re-make the Migration Regulations after each review.
The answers to both these questions are inter-related, since the decisions to introduce a review process into the Migration Regulations, and
to exempt these regulations from sunsetting, were not taken because there was insufficient time available to conduct a review of the Migration Regulations. Instead, these decisions were made because – for the
reasons outlined below – it was considered inappropriate for the Migration Regulations to sunset.
The Migration Regulations are large and complex, and underpin Australia's visa framework. This framework supports the Government's international priorities and obligations by facilitating:
• temporary entry of people into Australia to undertake education, tourism, working holidays or skilled work (more than 7.7 million temporary visas were granted in 2015-16); and
• permanent migration.
Remaking the Migration Regulations would incur significant costs, and place a high impost on Government resources, with limited effect on the reduction of red tape, the delivery of clearer law or the alignment of the existing legislation with current Government policy.
In addition, a remake of the Migration Regulations would require complex and difficult to administer transitional provisions. It is likely that this would have a significant impact on any undecided visa and sponsorship applications, as well as causing significant uncertainty for:
• the millions of visa holders whose visa conditions and the grounds
on which their visa is held, including when that visa ceases, are determined by the Migration Regulations;
• the millions of current or future visa applicants whose eligibility for
an Australian visa is determined by the Migration Regulations;
• sponsors and potential sponsors; and
• industries where the conduct of business is reliant on migrants, either
as employees or clients.
The Migration Regulations were exempted from sunsetting on the basis that the new review process met the objectives of the sunsetting regime set out in Part 4 of Chapter 3 of the Legislation Act 2003 (the Legislation Act), which are 'to ensure that legislative instruments are kept up to date and only remain in force for so long as they are needed' (see section 49).
There is no question that the Migration Regulations are still needed – as described above, they are in constant use to support Australia's migration programme. There is also no question that the Migration Regulations are kept up to date and fit for purpose; the regulations are regularly reviewed and amended, often extensively, to reflect current Government priorities and to respond to economic and social developments. Amendments are also made several times each year to address changing policy and administrative requirements.
In addition, as a deregulation measure, in 2012-2013 the Migration Regulations were comprehensively reviewed and were amended in 2014 to remove redundant provisions and regularise terminology (see the Migration Amendment (Redundant and Other Provisions) Regulation 2014 for further details about these amendments).
The process involved individual consideration of every provision of the Migration Regulations and categorisation as 'still required', 'possibly redundant', and 'redundant'. The relevant policy area was then consulted to provide instructions to repeal, or justification to keep the provisions. The process also involved updating cross references and terminology, and certain drafting practices.
In future, the Migration Regulations will continue to be reviewed and improved to ensure they are up to date and align with Government policy, including the announcements made on 9 May 2017, as part of the 2017-18 Budget, that the Government:
• has committed $95.4 million in the 2017-18 Budget to support new technologies for my Department to bolster the prosperity of the nation and to protect Australia into the future; and
• will initiate a long-term programme of work to enhance the visa system and deal with the increasing number of movements across Australia's border (more than 700,000 people arrive in or depart from Australia each week, and this number is expected to increase by about 20 per cent over the next few years).
Further information about these changes can be found here: http://www.minister.border.gov.au/peterdutton/2017/Pages/budget-2017-18.aspx
In light of the above, I consider that the Migration Regulations currently meet the objectives of Part 4 of Chapter 3 of the Legislation Act, and that the review arrangements inserted by the Migration Amendment (Review of the Regulations) Regulation 2016 formalise, and add to, what is effectively an ongoing review process. I note, moreover, that each time amendments are made to the Migration Regulations the changes are subject to Parliamentary scrutiny, including possible disallowance.

Committee's third response

The committee thanks the minister for his response.

The committee's request for further information regarding the Legislation (Exemptions and Other Matters) Amendment (Sunsetting and Disallowance Exemptions) Regulation 2016 [F2016L01897] arose from concerns regarding the exemption of the Migration Regulations from the sunsetting requirements of the Legislation Act 2003; and in particular, the absence of a statutory requirement under the new review arrangements to remake the Migrations Regulations after each review.

The committee notes the minister's advice that a remake of the Migration Regulations would:

• require complex and administratively difficult transitional provisions; and

• this would likely have a significant impact on any undecided visa and sponsorship applications, as well as causing significant uncertainty for visa holders, sponsors and industries where the conduct of business is reliant on migrants.

The committee also notes the minister's advice that 'the Migration Regulations are large and complex, and underpin Australia's visa framework' and that 'remaking the Migration Regulations would incur significant costs, and place a high impost on Government resources'. However, the committee's focus where an exemption from sunsetting is proposed is to ensure that Parliament maintains effective and regular oversight of the legislative power it has delegated (including the opportunity to consider disallowance of instruments that have been remade due to sunsetting).

The committee remains concerned that exemption of the Migration Regulations from the sunsetting requirements of the Legislation Act 2003, reduces Parliament's oversight of these regulations as there is no statutory requirement to remake the regulations after each review.

The committee further considers that a review of the Migration Regulations is a significant matter and that the processes and outcomes of such a review should be subject to parliamentary scrutiny.

The committee considers that an exemption from sunsetting of a significant piece of delegated legislation (such as the Migration Regulations) could be more appropriately contained in primary legislation (see for example section 54 of the Legislation Act 2003). The committee reiterates its view that significant matters should be included in primary legislation unless a compelling justification is provided for their inclusion in delegated legislation.

The committee's notice of motion to disallow the Legislation (Exemptions and Other Matters) Amendment (Sunsetting and Disallowance Exemptions) Regulation 2016 [F2016L01897] must be resolved or withdrawn within 15 sitting days after it was given.

The committee considers that the information provided by the Minister for Immigration and Border Protection and the Attorney-General does not adequately address the committee's request for a justification for the exemption of the Migration Regulations from the sunsetting requirements of the Legislation Act 2003.

Therefore, the committee requests that the minister provide detailed advice as to:

• why it is appropriate for the Migration Regulations to be exempt from the sunsetting requirements of the Legislation Act 2003;

• why it is appropriate to provide for this exemption in delegated legislation; and

• why it is appropriate to reduce Parliament's oversight of these regulations, noting that there is no statutory requirement to re-make the regulations after each review (including the opportunity to consider disallowance of instruments that have been remade due to sunsetting).

---

^[1] See Parliament of Australia, Disallowance Alert 2017, http://www.aph.gov.au/Parliamentary_ Business/Committees/Senate/Regulations_and_Ordinances/Alerts (accessed 18 July 2017).

^[2] Attorney-General’s Department, Guide to Managing Sunsetting of Legislative Instruments (2016), https://www.ag.gov.au/LegalSystem/AdministrativeLaw/Documents/guide-to-managing-sunsetting-of-legislative-instruments-april2014.doc (accessed 2 February 2016).

^[3] The committee gave a protective notice of motion to disallow the Legislation (Exemptions and Other Matters) Amendment (Sunsetting and Disallowance Exemptions) Regulation 2016 [F2016L01897] on 31 March 2017. This motion currently must be resolved or withdrawn by 15 August 2017.