Migration Legislation Amendment (2017 Measures No 4) Regulations 2017 [F2017L01425]-Advice only [2017] AUSStaCSDLM 440 (12 June 2017)

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Instrument	Migration Legislation Amendment (2017 Measures No. 4) Regulations 2017 [F2017L01425]
Purpose	Amends the Migrations Regulations 1994 to update immigration policy and administrative practice
Authorising legislation	Migration Act 1958
Portfolio	Immigration and Border Protection
Disallowance	15 sitting days after tabling (tabled Senate 13 November 2017) Instrument disallowed on 5 December 2017[1]
Scrutiny principle	Standing Order 23(3)(d)

Parliamentary oversight of delegated legislation

The Senate disallowed this instrument on 5 December 2017.

Section 1 of the instrument inserted a new definition of 'adequate arrangements for health insurance' into the Migration Regulations 1994 (Migration Regulations).

This definition provided that 'adequate arrangements for health insurance' meant

an arrangement to be covered by health insurance:

(a) that meets requirements specified by the Minister under regulation 1.15K; or

(b) if no such requirements are specified, that the Minister considers adequate in the circumstances.

Section 2 of the instrument also inserted a new section 1.15K into Part 1 of the Migration Regulations, which provided that the minister may, by legislative instrument, specify requirements for health insurance for the purposes of the definition of 'adequate health insurance' in regulation 1.03. The committee notes that maintaining adequate arrangements for health insurance is a condition imposed on a large number of temporary visas.^[2]

Instruments made under Part 1 of the Migration Regulations are, under the Legislation (Exemptions and Other Matters) Regulation 2015 (LEOM Regulation), exempt from disallowance. Therefore, any instrument made under new section 1.15K would have been exempt from disallowance, and would not be subject to parliamentary oversight. The explanatory statement (ES) to the instrument confirmed that such an instrument would not be subject to disallowance:

The instrument would not be disallowable because it is made under Part 2 [sic] of the Migration Regulations, and therefore is exempted from disallowance by section 10 of the Legislation (Exemptions and Other Matters) Regulations 2015 (see table item 20).

The committee acknowledges that the intention of section 1.15K was to provide clarity to visa holders as to the meaning of 'adequate arrangements for health insurance' and it could thereby improve visa holders' understanding of their obligations, as what constitutes 'adequate arrangements for health insurance' is currently only explained in departmental policy guidance. The committee also acknowledges that a comprehensive explanation of these matters was included in the ES to the instrument.

However, the committee notes that the ES did not provide an explanation as to why an instrument specifying requirements for health insurance should not be subject to disallowance.

In this regard, the committee draws attention to its consideration of the LEOM Regulation when it was made in 2015, and in particular its consideration of section 10 of that instrument.^[3] The committee noted that while the ES to the LEOM Regulation provided a justification for exempting the majority of the instruments covered by section 10 from disallowance, the ES did not provide any information on:

• the nature of the instruments covered by the exemption in table item 20 (that is, instruments made under the Migration Act 1958 (Migration Act) and Migration Regulations);

• the broader justification for the exemption of instruments made under the Migration Act and Migration Regulations from disallowance; or

• whether, taking into account the nature of the instruments to which the exemption applies, it is appropriate to include this broad exemption from disallowance (thereby removing the instruments from the oversight of the Parliament).

The committee requested the advice of the minister in relation to these matters.

In response to the committee's concerns, the Attorney-General advised that:

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.^[4]

The Attorney-General also provided a table of examples of the nature of instruments made under the Migration Act and Migration Regulations. Relevantly, the table indicates that instruments made under Part 1 of the Migration Regulations include eligible passports for internet application lodgement; specified occupations for certain visa eligibility; appropriate English language test results; and course qualifications for certain visas. The committee accepted the Attorney-General's justification as to why relevant instruments (particularly those outlined in the table) should continue to be exempt from disallowance.^[5]

However, it does not appear to the committee that instruments prescribing requirements for health insurance are captured by the examples given by the Attorney-General. It is therefore unclear to the committee that the justification previously provided by the Attorney-General for exempting instruments made under Part 1 of the Migration Regulations would extend to instruments which define the meaning of specified terms which affect visa holders' obligations.

Noting that the instrument has been disallowed by the Senate, the committee draws the above concerns to the minister's attention and makes no further comment.

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^[1] See Parliament of Australia, Disallowance Alert 2017, https://www.aph.gov.au/Parliamentary_ Business/Committees/Senate/Regulations_and_Ordinances/Alerts.

^[2] See Migration Regulations Schedule 8, item 8501. The requirement to maintain adequate arrangements for health insurance is, for example, a condition imposed on all student visas. See www.border.gov.au/Trav/Stud/More/Visa-conditions/visa-conditions-students.

^[3] See Senate Standing Committee on Regulations and Ordinances, Delegated legislation monitor 14 of 2015, pp. 8-9; Delegated legislation monitor 16 of 2015, pp. 30-33.

^[4] Senate Standing Committee for Regulations and Ordinances, Delegated legislation monitor

16 of 2015, pp. 31-32.

^[5] Senate Standing Committee for Regulations and Ordinances, Delegated legislation monitor

16 of 2015, pp. 32-33.