Migration Amendment (Working Holiday Maker Visa Application Charges) Regulations 2017 [F2017L00576] [2017] AUSStaCSDLM 244 (8 September 2017)

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Instrument	Migration Amendment (Working Holiday Maker Visa Application Charges) Regulations 2017 [F2017L00576]
Purpose	Amends the Migration Regulations 1994 to provide for a visa application charge of $440 for the Subclass 417 (Working Holiday) visa and Subclass 462 (Work and Holiday) visa
Authorising legislation	Migration Act 1958
Department	Immigration and Border Protection
Disallowance	15 sitting days after tabling (tabled Senate 13 June 2017) Notice of motion to disallow currently must be given by 5 September 2017
Scrutiny principle	Standing Order 23(3)(a) and (d)
Previously reported in	Delegated legislation monitor 7 of 2017

Matter more appropriate for parliamentary enactment

The committee previously commented as follows:

Scrutiny principle 23(3)(d) of the committee's terms of reference requires the committee to consider whether an instrument contains matters more appropriate for parliamentary enactment (that is, matters that should be enacted via primary rather than delegated legislation).

On 24 November 2016 the Treasury Laws Amendment (Working Holiday Maker Reform) Act 2016 was passed by both houses of Parliament. It included amendments to the Migration Regulations 1994 (Migration Regulations) to reduce the visa application charge (VAC) for working holiday makers by $50, to $390, from 1 July 2017.

Item 1 of the Migration Amendment (Working Holiday Maker Visa Application Charges) Regulations 2017 [F2017L00576] (the regulation) amends the Migration Regulations to increase the VAC for working holiday makers by $50, to $440, from 1 July 2017.

The committee notes that the regulation may be described as reversing amendments made to the VAC for working holiday visas previously agreed to in primary legislation. However, the ES for the regulation provides no information as to the reason for introducing these changes via delegated legislation rather than primary legislation.

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

Minister's response

The Minister for Immigration and Border Protection advised:

The WHM VAC Regulations give effect to the decision made by Government in the Mid-Year Economic and Fiscal Outlook to maintain
the VACs for Working Holiday Maker visas at $440, in order to help fund the Government's upcoming Seasonal Worker Incentives trial. As noted by the Committee, this trial will provide incentives for eligible Australian job seekers to undertake horticultural seasonal work.
I consider that it was appropriate to make these changes via delegated legislation, in light of subsection 13(5) of the Legislation Act 2003, which provides that an amendment of a legislative instrument by an Act does
not prevent the instrument, as so amended, from being amended or repealed by a person who is currently authorised under the enabling legislation for the instrument to make instruments of the same kind.
I therefore consider there is a clear basis for changing the VACs for the Working Holiday Maker visas via delegated legislation, rather than by parliamentary enactment.

Committee's response

The committee thanks the minister for his response and has concluded its examination of the above. However, noting that the regulation may be described as reversing previous amendments contained in primary legislation, the committee draws this matter to the attention of the Senate.

Unclear basis for determining fees

The committee previously commented as follows:

As noted above, item 1 of the regulation increases the VAC for working holiday makers by $50, to $440. As the regulation reverses a previous reduction in the VAC which had not yet commenced, the committee notes that the regulation may therefore be described as maintaining the current VAC.

While the ES briefly notes a government decision to maintain the VAC when finalising the working holiday maker reform package, it does not appear to state the basis on which the VAC has been calculated, other than to indicate:

The revenue of not proceeding with the planned $50 reduction in the visa application charge will fund the Seasonal Worker Incentives Trial which will provide incentives for eligible Australian job seekers to undertake horticultural seasonal work.

The committee’s usual expectation in cases where an instrument of delegated legislation carries financial implications via the imposition of a charge, fee, levy, scale or rate of costs or payment is that the relevant ES makes clear the specific basis on which an individual imposition or change has been calculated.

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

Minister's response

The Minister for Immigration and Border Protection advised:

As noted by the Committee, the effect of the WHM VAC Regulations is to maintain the VACs for Working Holiday Maker visas at $440. This has been the VAC amount for these visas since 1 July 2015, when the VACs were indexed from $420 to $440. Continuation of the VAC of $440 is not expected to have a negative impact on demand as the VAC is relatively small compared to the costs and expenses of travel to and staying in Australia. The pricing of the Working Holiday Maker visa products is not expected to change Australia's relative position against similar international countries. In addition, I note that this VAC amount does not exceed the applicable charge limit set out in the Migration (Visa Application) Charge Act 1997. I therefore consider that $440 is an appropriate VAC for these visas.

Committee's response

The committee thanks the minister for his response.

The committee notes the minister's advice that the regulation maintains the current VAC amount for working holiday makers and that the amount does not exceed the applicable charge limit set out in the Migration (Visa Application) Charge Act 1997.

While the VAC amount remains unchanged, the minister's response does not address the question of the specific basis on which the amount has been calculated; for example, whether the VAC is calculated on the basis of cost recovery or on another basis.

The committee’s usual expectation in cases where an instrument of delegated legislation carries financial implications via the imposition of a charge (including where an instrument maintains a current charge) is that the relevant ES make clear the specific basis on which the charge has been calculated.

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