EXPLANATORY STATEMENT

Select Legislative Instrument 2008 No. 167

Issued by the Minister for Immigration and Citizenship

Migration Act 1958

Migration Amendment Regulations 2008 (No. 4)

 

Subsection 504(1) of the Migration Act 1958 (the Act) provides, in part, that the
Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act. Subsection 5(1) of the Act provides, amongst other things, that ‘prescribed’ means prescribed by the regulations.

 

In addition to subsection 504(1), subsection 168(3) of the Act provides that a person in a prescribed class is not required to comply with section 166 of the Act. Section 166 of the Act requires persons entering Australia to present and provide certain information. Currently these persons are required to comply with these requirements.

 

The purpose of the Regulations is to amend the Migration Regulations 1994 (the Principal Regulations) to exempt a specified class of persons, to be referred to as ‘foreign dignitaries’, from immigration clearance requirements under the Act on entry to Australia.

 

Details of the Regulations are set out in the Attachment.

 

The Regulations commence on 9 August 2008.

 

The Office of Best Practice Regulation’s Business Cost Calculator and Assessment Checklists were used to determine that there was no compliance cost on business or impact on competition in relation to these amendments.

 

Schedule 1 of the proposed Regulations was developed in consultation with the Department of the Prime Minister and Cabinet, the Attorney-General’s Department, the Department of Foreign Affairs and Trade, the Australian Customs Service, the Australian Quarantine and Inspection Service, the Australian Federal Police and the Department of Infrastructure, Transport, Regional Development and Local Government. No other consultations were conducted in relation to this Schedule as the amendments were considered not to have relevant implications for any other external agencies or bodies.

 

ATTACHMENT

 

Details of the Migration Amendment Regulations 2008 (No. 4)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Migration Amendment Regulations 2008 (No. 4).

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence on 9 August 2008.

 

Regulation 3 – Amendment of Migration Regulations 1994

 

This regulation provides that Schedule 1 to the Regulations amends the Migration Regulations 1994 (the Principal Regulations).

 

Regulation 4 – Application of amendments

 

This regulation provides that the amendments made by Schedule 1 to the Regulations apply in relation to a person who enters Australia on or after the day on which the Regulations commence.

 

Schedule 1 – Amendments

 

Item [1] – Regulation 1.03, after definition of “designated APEC economy”

 

This item inserts a new definition provision in regulation 1.03 in Division 1.2 of Part 1 of the Principal Regulations after the definition of “designated APEC economy”. This new provision defines the term “designated foreign dignitary”.

 

The term “designated foreign dignitary” is defined to mean a person to whom subregulation 3.06A(1) or (5) applies. Item [2] of this schedule inserts new regulation 3.06A after regulation 3.06 in Division 3.1 of Part 3 of the Principal Regulations.

 

The purpose of this amendment is to define the term “designated foreign dignitary” for the purposes of the Principal Regulations.

 

Item [2] – After regulation 3.06

 

This item inserts new regulation 3.06A after regulation 3.06 in Division 3.1 of Part 3 of the Principal Regulations.

 

In broad terms, section 166 of the Migration Act 1958 (the Act) requires Australian citizens and non-citizens entering Australia to present certain evidence relating to identity, visa status (for non-citizens) and other prescribed evidence and information. Subsection 168(3) of the Act provides that a person in a class prescribed in the regulations for the purpose of the provision, is not required to comply with section 166.

Regulation 3.06 in Division 3.1 of Part 3 of the Principal Regulations prescribes those persons listed in Part 2 of Schedule 9 to the Principal Regulations for the purposes of subsection 168(3) of the Act. Item [5] of this schedule inserts a new class in Part 2 of Schedule 9 to the Regulations, referred to as “a designated foreign dignitary”. This item specifies details relating to this new prescribed class.

 

New subregulation 3.06A(1) provides that a person is taken to be a “designated foreign dignitary” for the purposes of the legislation if the Minister for Immigration and Citizenship (the Minister) specifies the person in an instrument in writing or the person is included in a class of persons specified by the Minister in an instrument in writing for this paragraph.

 

New subregulation 3.06A(2) provides that the Minister must specify a person or a class of persons in accordance with arrangements approved by the Minister in writing. This amendment will ensure that there is a consistent approach to determining which persons are designated as foreign dignitaries for the purposes of the legislation. This provision will also ensure that the Minister retains sufficient control over the process irrespective of whether the discretion is delegated.

 

New subregulations 3.06A(3) and (4) provide that the period for which a person is a designated foreign dignitary:

 

·          begins when the Minister specifies that person in an instrument, or the person becomes a member of a class of persons specified in an instrument; and

 

·          ceases at the time, or in the way, as set out in that instrument.

 

These amendments are necessary to ensure that it is clear in the legislation when a person is to be afforded the designated status, and when that status ceases.

 

New subregulation 3.06A(5) provides that a person is taken to be a designated foreign dignitary if the person is an accompanying member of the immediate family of a person who has been specified by the Minister, or is a member of a class specified in an instrument by the Minister under new subregulation 3.06A(1). The term “member of the immediate family” is defined in regulation 1.12AA in Division 1.2 of Part 1 of the Principal Regulations to include in most circumstances, a spouse, child or parent (if the subject has not yet turned 18 years of age). It is the policy intention that the term “accompanying” be taken to limit the provision’s application to only those members of the immediate family that travel with the principal designated foreign dignitary and enter Australia at the same time (for example, when they travel on the same flight to Australia). The purpose of this amendment is to provide for immediate family members travelling with the relevant principal designated foreign dignitary to be afforded the same exemption status with respect to immigration clearance requirements.

 

New subregulation 3.06A(6) provides that an instrument made by the Minister under new subregulation 3.06A(1) is not a legislative instrument. The effect of this amendment is to provide an express intention in the legislation that instruments made by the Minister under new subregulation 3.06A(1) are not to be defined as a legislative instrument for the purposes of the Legislative Instruments Act 2003. The purpose of this amendment is to ensure that the policy intent of these amendments is reflected in the legislation, and that any such instruments made by the Minister under new subregulation 3.06A(1) can be managed as administrative instruments (without a requirement to table them in Parliament or register them on the Federal Register of Legislative Instruments).

 

The note following new subregulation 3.06A(6) informs the reader that the effect of the amendments made by item [5] of this schedule is to provide that a designated foreign dignitary is not required to comply with the requirements of section 166 of the Act relating to the presenting and providing of information on entry to Australia.

 

Item [3] – Schedule 9, heading

 

This item removes the heading for Schedule 9 to the Principal Regulations and replaces it with a new heading.

 

Item [5] of this schedule inserts new item 10 in Schedule 9 to the Principal Regulations. New item 10 prescribes the class of person titled “designated foreign dignitary”. The meaning of this new class of person is provided for in new regulation 3.06A (which is inserted in Division 3.1 of Part 3 of the Principal Regulations by item [2] of this schedule).

 

The purpose of this amendment is to ensure that the Schedule 9 heading accurately describes the provisions it contains.

 

Item [4] – Schedule 9, Part 2, after item 9

 

This item replaces the reference to “regulation 2.40.” with “regulation 2.40”.

 

This amendment is technical in nature and consequential to the amendment made by item [5] of this schedule.

 

Item [5] – Schedule 9, Part 2, after item 9

 

This item inserts new item 10 after item 9 in Part 2 of Schedule 9 to the Principal Regulations.

 

Regulation 3.06 in Division 3.1 of Part 3 of the Principal Regulations provides that, for the purposes of subsection 168(3) of the Act (which deals with the classes of person not required to give information under section 166), each class of person set out in Part 2 of Schedule 9 to the Principal Regulations is prescribed. Following this, Part 2 of Schedule 9 lists those persons prescribed under subsection 168(3) of the Act.

 

New item 10 in Part 2 of Schedule 9 lists persons determined under the legislation to be “a designated foreign dignitary”. Item [1] of this schedule inserts a definition of “designated foreign dignitary” in regulation 1.03. This new definition provision provides that a “designated foreign dignitary” means a person to whom new subregulations 3.06A(1) or (5) applies. New subregulations 3.06A(1) and (5) are inserted by item [2] of this schedule.

 

The purpose of this amendment is to provide for those persons described in new subregulations 3.06A(1) and (5), referred to as designated foreign dignitaries, to be exempted from having to satisfy the requirements of section 166 of the Act on entry to Australia.