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Australian Senate Standing Committee for the Scrutiny of Delegated Legislation - Monitor |
This chapter sets out matters which have been concluded following the receipt of additional information from ministers.
Correspondence relating to these matters is available on the committee's website.[1]
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Instrument
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Legislation (Exemptions and
Other Matters) Amendment (Sunsetting and Disallowance Exemptions) Regulation
2016 [F2016L01897]
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Purpose
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Amends the Legislation (Exemptions and Other Matters) Regulation 2015 to
insert new exemptions from the sunsetting and disallowance schemes under the
Legislation Act 2003; and amends the Migration Regulations 1994 to
introduce a new statutory review process
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Authorising legislation
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Portfolios
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Attorney-General's; Immigration and Border Protection
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Disallowance
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15 sitting days after tabling (tabled Senate 7 February 2017 and 29
November 2016 respectively)
The time to give a notice of motion to disallow expired on
31 March 2017 and 28 March 2017 respectively
The committee gave notices of motion to disallow on
31 March 2017 and 28 March 2017 respectively
The committee withdrew the notice of motion to disallow [F2016L01809] on 22
June 2017
The committee withdrew the notice of motion to disallow [F2016L01897] on 15
August 2017[2]
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Scrutiny principle
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Standing Order 23(3)(a) and (d)
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Previously reported in
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Delegated legislation monitors 1, 3, 7, 8, 9 and 13 of
2017
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The committee previously commented as follows:
Exemption from sunsetting
Extensive correspondence has been exchanged between the committee, the Attorney-General and the Minister for Immigration and Border Protection in relation to these instruments, since February 2017. The following provides extracts from the earlier communications, which are set out comprehensively in Delegated legislation monitor 9 of 2017.[3]
Committee's initial comment
The committee initially commented as follows:
The 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 explanatory statement (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 (Legislation Act).
The committee notes that pursuant to section 50 of the Legislation Act, but for the exemption regulation, the Migration Regulations would have been required to be remade due to sunsetting on or before 1 October 2018.
The ES for the review 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.[4]
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 requested the advice of the minister in relation to the above.
Attorney-General's first response
The Attorney-General advised:
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 noted the advice that the Department of Immigration and Border Protection had not commenced the review of the Migration Regulations, and that timeframes for the initial review under the new process were put in place to ensure that adequate resources and time were allocated. However, the Attorney-General's response did not provide information as to why, in effect, an additional year was 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 reiterated its expectation that departments and agencies plan for sunsetting well in advance of an instrument's sunset date. The committee remained 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 are avoided.
The committee requested the further advice of the ministers in relation to the above.
Immigration minister's first response
The Minister for Immigration and Border Protection advised:
The Government's agenda includes a substantial reform of Australia's migration and citizenship framework, necessitating associated legislative change...
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 acknowledged the advice that the Legislation Act 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 noted 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.
However, it remained 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 Legislation Act 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 remake the Migration Regulations after each review to ensure the Parliament maintains effective and regular oversight of the Migration Regulations.
The committee requested the further advice of the ministers in relation to its concerns regarding the exemption of the Migration Regulations from the sunsetting requirements of the Legislation Act, and the absence of a statutory requirement to remake the Migrations Regulations after each review.
Immigration minister's second response
The Minister for Immigration and Border Protection advised:
... 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...
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...
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...
In future, the Migration Regulations will continue to be reviewed and improved to ensure they are up to date and align with Government policy...
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 noted the minister's advice that a remake of the Migration Regulations would require complex and administratively difficult transitional provisions; and 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 noted 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 remained concerned that exemption of the Migration Regulations from the sunsetting requirements of the Legislation Act reduces Parliament's oversight of these regulations as there is no statutory requirement to remake the regulations after each review.
The committee further considered 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 considered 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). The committee reiterated 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 considered that the information provided by the Minister for Immigration and Border Protection and the Attorney-General did 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.
The committee requested that the Attorney-General provide detailed advice as to:
• why it is appropriate for the Migration Regulations to be exempt from the sunsetting requirements of the Legislation Act;
• 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).
Attorney-General's second response
The Attorney-General advised as follows:
Why it is appropriate for the Migration Regulations to be exempt from the sunsetting requirements of the Legislation Act
As mentioned in the letter to the Committee of 13 July 2017 from the Minister for Immigration and Border Protection, Hon Peter Dutton MP,
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, 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).
I am advised by Minister Dutton that the Migration Regulations are in constant use to support Australia's migration programme, and are unquestionably still needed. In addition, the Migration 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.
Further, a longstanding and accepted policy reason for granting an exemption from sunsetting is that an instrument is subject to a more stringent review process than is set out in the Legislation Act. Instruments that have already been exempted on this basis have not been required
to be remade and subject to parliamentary scrutiny following the review.
For these reasons, the Migration Regulations currently meet the objectives of Part 4 of Chapter 3 of the Legislation Act and it is appropriate that they be exempted from sunsetting.
Why it is appropriate to provide for this exemption in delegated legislation
The Legislation Act does not specify any conditions that must be fulfilled before the power to make this Regulation may be exercised...
The existence of paragraph 54(2)(b) indicates that, at the time the Legislation Act was enacted, Parliament considered it appropriate to allow certain instruments to be exempted from sunsetting in delegated legislation.
The fact that no criteria are set out in the Legislation Act for the purpose of determining when an instrument should be exempted, and no limitations are placed on the power to exempt an instrument from sunsetting, indicates this was intended to confer a broad discretion on the rule-maker.
Furthermore, the process of prescribing legislative instruments which are exempt from sunsetting is subject to Parliamentary scrutiny, including possible disallowance. For these reasons, it is appropriate to provide for the exemption for the Migration Regulations in delegated legislation,
and this is consistent with other exemptions that have been provided.
Whether the exemption would reduce Parliament's oversight of these regulations
The Committee has indicated it is focused on ensuring that Parliament maintains effective and regular oversight of the legislative power it has delegated. However, the purpose of the sunsetting regime is only to ensure that legislative instruments are regularly reviewed, and remade
or repealed, unless an exemption applies. As indicated above, section 49 of the Legislation Act provides that the purpose of the sunsetting regime is to ensure that legislative instruments are kept up to date and only remain in force for so long as they are needed. That is, the purpose of sunsetting is to ensure that legislative instruments are periodically reviewed and,
if they no longer have a continuing purpose, are repealed. The explanatory memorandum for the Legislative Instruments Act 2003, which introduced the sunsetting regime and the explanatory statement for the Legislative Instruments Regulations 2004, which provided the first exemptions by way of legislative instrument, did not refer to the maintenance of parliamentary scrutiny over legislative instruments as a justification for
the sunsetting regime.
Further, I do not consider that Parliament's oversight of the Migration Regulations is reduced by the Sunsetting Exemption Regulation because, as outlined in Minister Dutton's letter of 13 July 2017; the Migration Regulations are regularly reviewed and updated. Indeed, I am advised that the Migration Regulations are one of the most frequently amended in force instruments on the Federal Register of Legislation. Each time such
an amendment is made, it is subject to Parliamentary scrutiny and possible disallowance.
I am advised by Minister Dutton that the Migration Regulations will continue to be reviewed and improved in future to ensure they are up to date and align with Government policy. In addition to the reforms referred to in Minister Dutton's previous correspondence, Minister Dutton has recently initiated a public consultation process on a new and modern visa framework to transform Australia's visa system. The intention of this consultation is to consider how to simplify the current visa system and better align it with Australia's economic, social and security priorities.
...
Transformative simplification will be central to the modernisation process, and it is anticipated that substantial legislative reform will be required.
Any changes to the Migration Regulations made as part of this process will, as always, be subject to Parliamentary scrutiny.
The committee acknowledged that the regulations had been made in accordance with statute.
However, the committee commented that scrutiny principle 23(3)(d) of its terms of reference required that the committee seek to ensure that instruments do not contain matter more appropriate for parliamentary enactment. In accordance with this principle, the committee has had a longstanding interest in the balance of what matters should be dealt with in primary as opposed to delegated legislation.
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 an opportunity to consider the disallowance of an instrument as a whole, which is the process that applies where disallowable legislative instruments are remade due to sunsetting).
The committee acknowledged that the Migration Regulations are regularly amended, and that those amendments are subject to parliamentary scrutiny and disallowance. However, the committee considered that removing the requirement to remake the Migration Regulations every 10 years after a significant review does reduce Parliament's oversight of those regulations. This is because a requirement to remake the Migration Regulations every 10 years provides greater opportunity for the Parliament to ensure the content of the regulations is current as well as the possibility of parliamentary disallowance of the remade regulations.
The committee also noted that no other form of parliamentary oversight has been introduced to replace the Legislation Act sunsetting process. The committee considered that a review of the Migration Regulations as a whole is a significant matter and that the processes and outcomes of such a review should be subject to parliamentary scrutiny (as provided for in the sunsetting framework of the Legislation Act).
The committee therefore considered that a legislative requirement should be inserted into the Migration Regulations to require the minister to table in Parliament the review documentation (including the final report) that is prepared for the purposes of new regulation 5.44A of the Migration Regulations. The committee expressed its expectation that the review and its report would be thorough and,
at a minimum, reflect the principles outlined in the Attorney-General's Department Guide to Managing Sunsetting of Legislative Instruments.
The committee considered that it is essential for Parliament to retain direct oversight of the outcomes of the review process of significant pieces of delegated legislation, including the Migration Regulations 1994. The committee therefore requested that a legislative requirement be inserted into the Migration Regulations to require the minister to table in Parliament the review documentation (including the final report) that is prepared for the purposes of new regulation 5.44A of the Migration Regulations.
Attorney-General's third response
The Attorney-General advised as follows:
Policy oversight of significant instruments
As advised in my previous letter of 11 August 2017, the Migration Regulations were exempted from sunsetting on the basis that the review process contained in those Regulations met the objectives of the sunsetting regime as set out in section 49 of the Legislation Act. These objectives 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 of the Legislation Act).
I acknowledge the Committee's position that careful consideration should be applied to granting exemptions from sunsetting where the instrument may be regarded as 'significant'.
In deciding whether to grant an exemption from the sunsetting regime,
I give careful consideration to the longstanding policy criteria described in the Explanatory Statement to the Sunsetting Exemption Regulation.
I note that the Legislation Act does not distinguish between significant and non-significant instruments, and it is not clear that applying different considerations based on such a distinction would necessarily advance the objectives of the sunsetting regime.
Further, as the Committee is aware, parliamentary oversight of delegated legislation can occur in a variety of ways. This includes through the Committee's consideration of instruments at the time they are created, cooperation between the government and scrutiny bodies in relation to the implementation of instruments, and scrutiny of the application of instruments through Senate Estimates, Question Time, and other parliamentary processes.
Including exemptions in delegated legislation
I acknowledge that the Committee is concerned that it would be preferable to provide a sunsetting exemption for the Migration Regulations in the primary legislation. This concern arises in the context of scrutiny principle 23(3)(d) of the Committee's terms of reference, which includes consideration of whether an instrument contains matter more appropriate for parliamentary enactment.
It is critical that the sunsetting regime remain flexible, in order to ensure that it does not undermine the proper functioning of government. For this reason, the Legislation Act enables exemptions by legislative instrument, and the Legislation (Exemptions and Other Matters) Regulation 2015 (Exemptions Regulation) provides a list of all exemptions from sunsetting. This reflects the longstanding policy preference for maintaining a clear list of exemptions in a single piece of legislation.
This flexibility ensures that all requests for exemptions from sunsetting
are assessed within the framework of the Legislation Act. In particular,
it ensures that all new exemptions are considered in light of the express purpose of Part 4 Chapter 3 of the Legislation Act and are granted on consistent grounds.
Tabling requirement for the report following the review of the Migration Regulations
The Committee has suggested that the Migration Regulations be amended to require that reports prepared for the purposes of regulation 5.44A of the Migration Regulations be tabled in the Parliament. I am supportive of measures that ensure that legislative instruments remain up to date and fit for purpose. However, as the Migration Regulations are administered by the Hon Peter Dutton MP, Minister for Immigration and Border Protection, I am unable to respond to the Committee in relation to this matter.
The committee noted the Attorney-General's views with regard to appropriate oversight of significant legislative instruments.
However, the committee reiterated the concerns it had previously drawn to the attention of the Senate regarding:
• the use of delegated legislative power to exempt such a significant piece of delegated legislation from the sunsetting framework of the Legislation Act; and
• the removal of effective parliamentary oversight of the outcomes of the review process for the Migration Regulations (as is provided for under the sunsetting regime).
The committee indicated that it remains of the view, expressed in Delegated legislation monitor 9 of 2017, that an exemption from the sunsetting requirements of the Legislation Act is a significant matter. The committee considers that the circumstances in which an exemption will be appropriate are limited, and will continue to analyse any such proposal carefully.
If future exemptions from sunsetting are proposed in delegated legislation, the committee will expect the accompanying justification to take its expectations into account and to provide a detailed justification of the need for an exemption from the existing sunsetting requirements of the Legislation Act. In particular, this should address how Parliament will retain oversight of the review process of such delegated legislation.
In this regard, the committee noted the Attorney-General's advice that its request that a legislative requirement be inserted into the Migration Regulations to require the minister to table in Parliament the review documentation (including the final report) that is prepared for the purposes of new regulation 5.44A of the Migration Regulations, should be addressed to the Minister for Immigration and Border Protection. The committee therefore requested the advice of the Minister for Immigration and Border Protection in response to its request.
Immigration minister's third response
The Minister for Immigration and Border Protection advised:
As the Committee would be aware, both the Department of Immigration and Border Protection and the migration legislation are undergoing a significant programme of reform at present.
...
The transformation of Australia's visa system is likely to require amendment of the Migration Regulations. This body of work may take place over a number of years.
As a result of the above, I anticipate documentation relating to the review of the Migration Regulations, and the final report, are likely to encompass matters that are still under consideration by Government. I therefore do not consider it appropriate or necessary to insert a legislative requirement for either the documentation prepared in relation to the review of the Migration Regulations, or the final review report, to be tabled in Parliament.
I note the Committee's concerns that significant legislation should be subject to Parliamentary oversight. I also note the report of the Sunsetting Review Committee on the Operation of Sunsetting Provisions in the Legislation Act 2003, which was recently released. The report noted the Committee's position that the outcomes of the review of the Migration Regulations should be tabled. Ultimately, the Sunsetting Review Committee concluded that it is a matter for the responsible minister to determine, in prescribing a statutory review requirement, whether it is appropriate for the outcomes of the review to be tabled in Parliament.
Regardless of the above, any future amendments to the migration legislation would be subject to the usual Parliamentary oversight. Where amendments are made to the Migration Regulations it would, as always, be open to Parliament to disallow the amendments if this was considered appropriate.
Committee's final response
The committee thanks the minister for his response and notes the minister's advice that he does not consider it appropriate or necessary to insert a legislative requirement for either the documentation prepared in relation to the review of the Migration Regulations, or the final review report, to be tabled in Parliament.
The committee notes that this means no other form of parliamentary oversight will replace the Legislation Act's sunsetting process in relation to the Migration Regulations.
The committee acknowledges that amendments to the Migration Regulations will remain subject to parliamentary scrutiny and disallowance, including any amendments which result from the review of the regulations currently underway. The committee considers, however, that Parliament's opportunity to consider amendments to an instrument on an ad hoc basis, as they arise, is not the same as comprehensive periodic oversight of an instrument in its entirety, as envisaged by the sunsetting regime.
The committee is conscious that these instruments have been the subject of an extensive dialogue over a long period, and acknowledges the cooperation of both the Attorney-General and the Minister for Immigration and Border Protection in assisting the committee with its consideration of this matter. The committee recognises that there is a difference of view between the committee and the relevant ministers in relation to these issues, which is unlikely to be resolved through further correspondence.
The committee nonetheless reiterates its concern that these instruments have effectively removed from comprehensive parliamentary scrutiny a significant body of delegated legislation, in an area of law which engages a large number of Australia's national and international legal obligations, and has significant ramifications for individuals as well as the national interest. The committee reiterates its considered view that it is essential that Parliament retain direct oversight of the outcomes of the review of significant pieces of delegated legislation, including the Migration Regulations 1994.
The committee also reiterates its expectation that the review of the Migration Regulations, and the resulting report, would be thorough and, at a minimum, reflect the principles outlined in the Attorney-General's Department Guide to Managing Sunsetting of Legislative Instruments.
The committee has concluded its examination of the instruments. However, the committee draws its concerns regarding the exemption of the Migration Regulations from sunsetting, and the absence of alternative arrangements for appropriate parliamentary oversight of those regulations, to the attention of the Senate.
[1] See www.aph.gov.au/regords_monitor.
[3] See also Delegated legislation monitors 1, 3, 7, 8 and 13 of 2017, and the included or associated ministerial correspondence, available at https://www.aph.gov.au/Parliamentary_ Business/Committees/Senate/Regulations_and_Ordinances/Monitor.
[4] Attorney-General's Department, Guide to Managing Sunsetting of Legislative Instruments (December 2016), https://www.ag.gov.au/LegalSystem/AdministrativeLaw/Documents/guide-to-managing-sunsetting-of-legislative-instruments-december-2016.pdf
(accessed 21 November 2017).
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