REVIEW OF PRE-2008 COMMONWEALTH SUBORDINATE LEGISLATION AND OTHER REGULATION

Review Summary for the Immigration and Citizenship Portfolio

Overview

In February 2009, the Government announced in the Updated Economic and Fiscal Outlookthat it would undertake a review of pre-2008 Commonwealth subordinate legislation and other regulation (the Review) in order to document those regulations which impose net costs on business and identify scope to improve regulatory efficiency. The Department of Finance and Deregulation (Finance) has been tasked to co-ordinate the review on the Government’s behalf. This report focuses on the review of subordinate legislationand other regulations administered within the Immigration and Citizenship Portfolio (the portfolio).The report was prepared in consultation with the Department of Immigration and Citizenship.

The portfolio constitutes a broad range of policy areas, concerning citizenship and immigration. Legislative instruments in the portfolio mainly concern individuals and their citizenship status. Currently, the Department of Immigration and Citizenship and Finance is undertaking a Better Regulation Ministerial Partnership tosimplify and streamline Australia’s system of visa subclasses. This Partnership will review all visa sub classes, encompassing the Migration Regulations, over the next five years. Therefore, the Migration Regulations are out of scope for the Review. The reviewed (in-scope) clusters focus on internal Government operations, the regulatory obligations for Migration Agents, as well as the relationship between the Australian Government and immigrants, including English education entitlements and procedures for granting citizenship. These regulations have a limited direct impact on the business community.

Finance recommends that the portfolio take action to update the Federal Register of Legislative Instruments to indicate on the homepages of amending instruments inthe Australian Citizenship Regulations cluster, that the instruments have ceased.

The Immigration and CitizenshipPortfolio

The portfolio comprises the Department of Immigration and Citizenship, two agenciesand eight other Bodies (Attachment A).

Data provided by the Office of Legislative Drafting and Publishing identified
394 instruments on the Federal Register of Legislative Instruments administered within the portfolio. Following consultation between Finance and the Department of Immigration and Citizenship (DIAC), 126 instruments (Attachment B) were grouped into eight broad policy clusters. These clusters were agreed between Finance and DIAC as falling within the scope of the Review. The remaining 268 instruments, grouped into three policy clusters (Attachment C) were excluded from the review because they are the subject of a current Better Regulation Ministerial Partnership.

The legislative instruments have been grouped into clusters to focus analysis at the policy level, rather than on individual instruments. DIAC provided additional information against each ‘in-scope’ cluster, including: the policy objective of the regulation; its ongoing relevance and impact; review history; and how it operates.

The following provides detail on each of the eight ‘in-scope’ policy clusters, including background information, relevant review history and Finance’s recommendations.

1. Australian Citizenship Regulations

Total number of instruments within cluster: 54

Number of amending or machinery instruments: 53

The Australian Citizenship Regulations determine numerous functions relating to Australian citizenship, such as: the procedures and rules for registering citizens; arrangements for pledges of commitment; arrangements for translating citizenship information; establishing fees for Australian citizenship; and the methods by which the Minister must give notice of a decision under the Australian Citizenship Act 2007.

In 2007 the (then) Office of Regulation Review advised that the regulations primarily impact individuals and were unlikely to have a direct effect, or substantial indirect effect, on business and were unlikely to restrict competition.

Following a review of Australian Citizenship arrangements, the regulations were introduced in 2007 to coincide with the commencement of the Australian Citizenship Act2007. The Regulations repealed the Australian Citizenship Regulations 1960. The Federal Register of Legislative Instruments does not indicate on the home pages of each of the
49 amending instruments to the Australian Citizenship Regulations 1960 that the instruments have been repealed. It would be appropriate to update the Federal Register of Legislative Instruments to indicate that these instruments have ceased in effect.

Recommendation

Finance recommends thatthe Department of Immigration and Citizenshiptake action to update the home pages of the relevant amending instruments on the Federal Register of Legislative Instruments, to indicate that these instruments have ceased.

2. Immigration (Education) Charge Regulations

Total number of instruments within cluster: 10

Number of amending or machinery instruments: 9

The Immigration (Education) Charge Regulations 1993prescribe classes of permanent visa or entry permit applications that were exempt from the English Education Charge. This charge was generally levied on applicants who did not have functional English. The Regulations also prescribed the amount payable. These regulations were superseded in 1997. The English Education Charge was replaced by the Visa Application Charge, which operates over all visa classes.

DIAC has advised that the regulations remain relevant to certain applications made between 1 January 1993 and 30 April 1997 and that the portfolio continues to interact with clients whose original application falls within this time period. Further, DIAC has advised that it regularly monitors this legislation and that, if it can be definitely established in the future that no further applications are affected by the legislation, the Immigration (Education) Charge Regulations and their enabling Act will be repealed.

Recommendation

Finance recommends that the Department of Immigration and Citizenship continue to monitor the Immigration (Education) Charge Regulations with a view to repealing the regulations and their enabling Act when they have fulfilled their purpose.

3. Immigration (Education) Regulations

Total number of instruments within cluster: 18

Number of amending or machinery instruments: 17

The current Immigration (Education) Regulations 1992 prescribe registration details and fees for certain migrant English courses. DIAC has advised that this fee has collected between $8,000 to $12,000 per annum, in total, in recent financial years. Under the current regulations, English course providers liaise with DIAC to determine client eligibility and fees; however DIAC collects the course fee through its state and territory offices.

The Immigration (Education) Amendment Bill 2010 was passed by Parliament on
24 June 2010 and is currently awaiting Royal Assent. As a result the Immigration (Education) Regulations will be amended to reflect the amendments proposed by the Bill.It is intended that the amended regulations will commence simultaneously with the Bill on1 January 2011. The proposed legislative changes will implement recommendations from a 2008 internal review of the Adult English Migrant Program and a 2009 Expenditure Review Committee Review, led by the Department of Finance and Deregulation. As the regulations have not been subject to an external policy review, these regulations were included in the Review.

The amended regulations will: abolish the fee for English courses; and detail the criteria for granting extensions to course registration, commencement and completion timeframes.

Recommendation

Finance recommends no action with respect to the instruments in this cluster.

4. Immigration (Guardianship of Children) Regulations

Total number of instruments within cluster: 1

Number of amending or machinery instruments: 0

The regulations were introduced in 2001 to update the practical arrangements in place between the Government and various State Child Welfare Agencies. The Welfare Agencies are the delegated guardians of child migrants,as determined by theImmigration (Guardianship Of Children) Act1946(I(GOC) Act). Historically, the I(GOC) Act was designed to provide for the care and welfare of child migrants from the United Kingdom following World War II. The I(GOC) Actremains in use for Unaccompanied Humanitarian Minors who arrive in Australia without a parent or legal guardian. DIAC has advised that while the context of the original legislation and regulations has changed, the care and welfare arrangements set out in the documents continue to be relevant.

The regulations allow the Minister to make directions for care and welfare arrangements for all non-citizen minors, which includes wards (non-citizen minors without a guardian) and non-wards (non-citizen minors with a guardian). The Minister retains legal guardianship of the non-citizen wards. The regulations also set out the provisions that allow the Minister to appoint State Child Welfare Agencies as delegated guardians of non-citizen minors. The regulations impact a number of stakeholders; however they do not have direct financial impact on any sectors of the economy. This cluster was reviewed in 2001.

Recommendation

Finance recommends no action with respect to the instruments in this cluster.

5. Migration (United Nations Security Council Resolutions) Regulations

Total number of instruments within cluster: 8

Number of amending or machinery instruments: 8

The instruments within this cluster were introduced to implement United Nations Security Council resolutions. These resolutions impose travel sanctions against nations, entities and individualsthat pose a threat to international peace and security,providing the Australian Government with legal authority to prevent sanctioned individuals from travelling to or transiting through Australia.

When the United Nations imposes a new travel sanction, a new legislative instrument is made and registered,specifying the resolution and detailing the new travel sanctions towards the specific country, individual or entities. Resolutions are specified under the Migration (United Nations Security Council Resolutions) Regulations 2007.

This cluster of regulations was introduced in 2007 and DIAC has advised that any direct impacts on the business sector are insignificant.

Recommendation

Finance recommends no action with respect to the instruments in this cluster.

Migration Agents Regulations

6a. Migration Agents Registration Application Charge Regulations

Total number of instruments within cluster: 11

Number of amending or machinery instruments: 9

The Migration Agents Registration Application Charge Regulations 1998 provide a lawful taxation basis for collecting funds, which financethe regulation of Australia’s migration advice industry.

6b. Migration Agents Regulations

Total number of instruments within cluster: 8

Number of amending or machinery instruments: 3

The Migration Agents Regulations 1998 determine the registration process for migration agents and the Migration Agent Code of Conduct.

The Migration Agents regulations impact registered Migration Agents, as well as consumers of immigration assistance. Both clusters were recently reviewed by the
2007-08 Review of Statutory Self-Regulation of the Migration Advice Profession (Review). The Review’s focus was limited to the operation of the Migration Profession and did not review the clusters as a whole. The Review was undertaken to assess the effectiveness of the Migration Agents regulatory scheme and the readiness of the profession to move from statutory self-regulation to self-regulation. The Review concluded that the profession was not ready for self-regulation and recommended that the Government establish a regulatory body that was separate from the Migration Institute of Australia Limited (MIA), the professional association for Migration Agents.

As a result of the Review’s key recommendation, the Office of Migration Agents Registration Authority (MARA) began operation on 1 July 2009. MARA comprises representatives from the MIA, the Law Council of Australia, the community and a consumer advocate. Unlike the former MIA, MARA is a separate regulatory body, established by DIAC. MARA’s role is to regulate the activities of the Australian migration advice profession, in order to provide consumers with appropriate protection and assurance with respect to migration advice they receive.

Recommendation

Finance recommends no action with respect to the instruments in this cluster.

7. Migration Reform (Transitional Provisions) Regulations

Total number of instruments within cluster: 9

Number of amending or machinery instruments: 8

The regulations in this cluster create transitional provisions to ensure a smooth transition from the migration legislation in force before 1 September 1994,when the Migration Regulations 1994 were introduced, to the legislation in force from that date. This cluster of regulations ensures that, as far as practicable, persons with a particular status, rights or liabilities before the commencement of the Migration Reform Act1992, continue to have equivalent rights and liabilities after commencement.

DIAC has advised that these regulations remain a necessary part of the transitional arrangements, which are required to address the status of the multitude of persons who were in Australia prior to 1 September 1994, and have remained in Australia since that time, as well asaddress the major changes made to the Migration Act1958. DIAC has advised that there is no timeframe established for the possible repeal of the Transitional Regulations, as there will be individuals who rely upon these Transitional Regulations for their immigration status indefinitely (potentially for the rest of their life).

Recommendation

Finance recommends no action with respect to the instruments in this cluster.

8. Reporting Systems Instruments

Total number of instruments within cluster: 7

Number of amending or machinery instruments: 0

These Reporting Systems Instruments are legislative instruments under Division 12B of the Migration Act 1958. Since 1 January 2003, reporting passenger information in advance of their arrival in Australia has been mandatory for all international passenger aircraft and cruise ships. This is done through the Advance Passenger Processing (APP) system.

Passenger and crew information is collected at check-in by the airline’s Departure Control Systems and by cruise ships and transmitted to Australia via the APP system. Collection of this information enables airlines and cruise ships to check travellers have appropriate authority to enter Australia and to prevent undocumented passengers entering Australia.

DIAC has advised that the APP is a component of Australia’s layered approach to border management and security. The information collected via the APP system provides border agencies with details of passengers and crew, and of when and from where the passenger or crew member will be travelling. Having this advance information enables Customs and DIAC to undertake necessary checks on people before they arrive, and to streamline travellers’ clearance on arrival.

Currently forty-six airlines and all international passenger cruise ships arriving in Australia provide APP information on passengers and crew (more than 99.9 per cent of travellers are successfully reported via the APP system).

DIAC has advised that the costs associated with providing APP information are minimal. An airline can choose to provide APP data either through their Departure Control System (data capture is part of the check-in process and normally consists of the passport machine-readable-zone being scanned) or through the APP website. Costs for cruise liners are also minimal, as the data is input via the APP website. Therefore, the only costs are for internet access and an administration cost for an officer to input the data.

DIAC has advised that they are assessing several instruments within this cluster, relating to aircraft reporting, to include three additional reporting requirements. These requirements will give DIAC the legal authority to ensure that arrival information, transmitted via APP, accurately reflects the date a passenger is expected to enter Australia. These additional requirements will not create additional burdens for business.

DIAC has advised that no formal review has been conducted with regard to sea arrivals. However, an internal review of international passenger cruise ships, through the National Sea Passenger Facilitation Committee, is currently underway to include cargo ships, as APP for cargo vessels ceased in 2008.

Recommendation

Pending the outcome of current reviews, Finance recommends no action with respect to the instruments in this cluster.

ATTACHMENT A

The Immigration and Citizenship Portfolio

The portfolio comprises:

  • The Department of Immigration and Citizenship – develops policy and administers programs for the purpose of managing the entry and settlement of people into Australia.
  • Ministerial Council on Immigration and Multicultural Affairs – is chaired by the Minister for Immigration and Citizenship and meets annually to consider and resolve issues of mutual concern.
  • Standing Committee on Immigration and Multicultural Affairs – convenes to discuss and coordinate policy on matters relating to immigration, settlement, citizenship and multicultural affairs. The committee also provides advice to the Ministerial Council on Immigration and Multicultural Affairs.
  • Australian Multicultural Advisory Council – advises the Minister for Immigration and Citizenship and the Parliamentary Secretary for Multicultural Affairs and Settlement Services on social cohesion issues relating to Australia’s cultural and religious diversity.
  • Detention Health Advisory Group – meets four times a year to advise the Department on the design, implementation and monitoring of improvements in detention health care policy and procedures.
  • Immigration Detention Advisory Group – advises the Minister on matters relating to the detention of unlawful non-citizens in immigration detention facilities and persons who are accommodated under alternative and community detention arrangements.
  • Refugee Resettlement Advisory Council – advises the Minister on matters relating to the settlement of entrants into the Humanitarian Program.
  • Skilled Migration Consultative Panel – acts as a consultative body for the Skilled Migration Interdepartmental Committee. The Panel convenes as required to consider and advise the Australian Government on skilled migration matters referred to it by the Minister for Immigration and Citizenship.
  • Migration Agents Registration Authority – regulates the migration advice profession and protects its consumers.
  • Migration Review Tribunal – provide independent and final merits review of decisions made in relation to visas, travelling to, entering and staying in Australia.
  • Refugee Review Tribunal – provide independent and final merits review of decisions made in relation to visas, travelling to, entering and staying in Australia.

ATTACHMENT B