Bills Digest no. 21,
2016–17
PDF version [654KB]
Elibritt Karlsen and Moira Coombs
Law and Bills Digest Section
11
October 2016
Contents
History of the Bill
Purpose of the Bill
Background
Why is this Bill needed?
What are the current arrangements?
Sponsorship
The sponsorship process
Existing protections for visa
applicants
The family violence exception
Limitations on sponsorship
Assessment of a sponsor’s character
Family Safety Pack
Sponsor undertakings
Recent Regulation change to
strengthen integrity and improve support for vulnerable applicants
Australian Law Reform Commission’s
previous consideration of the need for a sponsorship framework for the sponsored
family visa program
What are the main concerns/issues
with the Bill?
Committee consideration
Senate Legal and Constitutional
Affairs Legislation Committee
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Key provisions
Definitions
Changes to Division 3A of Part 2 of
the Act—Sponsorship
Minister to approve family sponsors
Minister’s responsibility in relation
to sponsorship obligations
Disclosure of personal information
Date introduced: 1
September 2016
House: House of
Representatives
Portfolio: Immigration
and Border Protection
Commencement: Sections
1 to 3 upon Royal Assent, Schedule 1 on 1 July 2017.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at October 2016.
History of
the Bill
A version of this Bill was introduced into the 44th
Parliament on 16 March 2016.[1]
That Bill had not been debated when Parliament was prorogued. The Bill lapsed
on prorogation of Parliament. The current Bill is identical in substance to the
earlier Bill.
Purpose of
the Bill
The purpose of the Migration Amendment (Family Violence
and Other Measures) Bill 2016 (the Bill) is to amend the Migration Act 1958 (Cth)[2]
(the Act) to introduce a sponsorship framework for the sponsored family
visa program. The proposed changes will:
- separate
sponsorship assessment from the visa application process
- require
the approval of persons as family sponsors before any relevant visa
applications are made
- impose
statutory obligations on persons who are or were approved as family sponsors and
provide for enforceable sanctions if such obligations are not satisfied
- allow
the Minister to refuse a sponsorship application and cancel and/or bar a family
sponsor where inappropriate use of the program or serious offences are
detected, especially those involving violence and
- improve
the sharing of personal information between parties to the application and the
program more generally.
Background
Why is this
Bill needed?
According to the Minister for Immigration and Border
Protection, Peter Dutton, there appear to be two integrity issues with the
sponsored family visa program which this Bill aims to address. The amendments are
designed to firstly protect vulnerable Australian sponsors who are targeted by
non-genuine visa applicants who simply want a permanent visa outcome. Secondly,
the changes will address the current situation where Australian sponsors who
have a violent history, including against family members, are able to sponsor non‑citizens
without having to disclose details of their past to either the Department or
other parties to the visa application.[3]
The Department’s submission to the Senate Legal and
Constitutional Affairs Committee inquiry on the previous version of the Bill does
not pick up on the issue of vulnerable sponsors but rather identifies additional
issues with existing arrangements that leave non‑citizen visa applicants
potentially vulnerable to family violence. The Department claims:
- sponsors
are often in a position of power with little accountability. It is the sponsor
who has knowledge of Australia, its laws and environment. The undertaking to
assist the visa applicant financially and in relation to accommodation can be
used by manipulative sponsors to control vulnerable visa applicants
- in
situations where the department has information that suggests the sponsor has a
violent past, this information cannot be shared with the visa applicant, nor
can it be a refusal consideration
- where
the assessment of the sponsor leads to a refusal, it is the visa application
that is refused. However, the lack of a sponsorship assessment that is separate
from the visa application means the visa application has to be submitted and
visa application charge paid before the sponsor assessment can be made.[4]
The amendments will initially apply to partner visas. However,
the Department has foreshadowed that the sponsorship framework will be extended
to other visas in the family program following its implementation in partner
visas.[5]
What are
the current arrangements?
Sponsorship
Sponsorship is a fundamental concept underpinning family migration.
The sponsor undertakes to ensure that their family member is supported during
their initial settlement in Australia and hence does not become a burden on the
wider Australian community.[6]
More explicitly, sponsors are required to give undertakings that they will assist
the visa applicant, to the extent necessary, financially and in relation to
accommodation, for two years from the date of grant of the visa or from the
applicant’s first entry into Australia as the holder of the visa.[7]
However, these undertakings are largely unenforceable because there are no
consequences for non-compliance.[8]
To sponsor a fiancé or partner visa applicant, the person
must be an Australian citizen, an Australian permanent resident or eligible New
Zealand citizen and the sponsor must be 18 years of age or older.[9]
Currently all partner visas require a sponsor (there are
two types of partner category visas: the partner visa and the prospective marriage
visa). The sponsor must be prepared to sponsor the visa applicant and any
dependent family members who are included in the application and who are also
migrating with the applicant. The sponsor usually has a fiancé or partner
relationship with the visa applicant.[10]
The
sponsorship process
Currently, there are no separate provisions in the
Migration Regulations 1994 under which an Australian citizen or permanent
resident must apply, and be approved, as a sponsor for a partner visa. Rather,
a citizen or permanent resident applies to be a sponsor by filling out a
sponsorship application form, which is then submitted to the Department along
with the partner visa application. This means that the ‘sponsorship approval is
dealt with as part of the visa approval process, treating the sponsor and the
visa applicants essentially as joint parties to the same application’.[11]
More explicitly:
The sponsorship relationship assessment is a two-stage
interrelated process:
- the undertaking given by the sponsor is assessed under
regulation 1.20 and
- the relationship of the sponsor to the applicant, and
the sponsorship, are assessed as Schedule 2 visa criteria.
These two separate but interrelated processes “merge” when
assessing Schedule 2 time of decision criteria for the visa applicant. Officers
cannot decide whether regulation 1.20 sponsor requirements are met unless a
valid visa application has been made. This is because:
- the power to approve or not approve a sponsorship lies
within the relevant Schedule 2 sponsorship criterion and
- s47(3) of
the Act precludes officers from considering visa applications (and it follows,
associated requirements) unless the application is valid ...
Sponsorship is part of the decision to grant or not grant the
visa. It is not a separate “decision”.
If an officer is not satisfied that the sponsor is eligible
or can fulfil the sponsorship undertaking, the visa applicant does not satisfy
Schedule 2 time of decision criteria relating to sponsorship, and accordingly,
must be refused a visa ...
A decision to refuse a visa on the basis that the sponsorship
has not been approved is merits reviewable (refer to s337 and s338 of the Act).[12]
Existing
protections for visa applicants
The family
violence exception
The family violence provisions allow certain people applying
for permanent residence in Australia to continue with their application after
the breakdown of their married or de facto relationship, if they or a member of
their family unit have experienced family violence by their partner. The
provisions were introduced in response to concerns that some partners might
remain in an abusive relationship because they believe they may be forced to
leave Australia if they end their relationship.[13]
Partners of Australian citizens, Australian permanent
residents and eligible New Zealand citizens who apply to live permanently in
Australia undergo a two-stage visa application process. If the applicant's
relationship breaks down after they have applied for permanent residence, the
applicant can still be considered for permanent residence if they provide
acceptable evidence that they or their dependants have been the victim of
family violence committed by their Australian partner.[14]
Relevant family violence is defined as:
conduct, whether actual or threatened, towards:
-
the alleged victim
- a member of the family unit of the alleged victim
-
a member of the family unit of the alleged perpetrator
- the property of the alleged victim
- the property of a member of the family unit of the alleged victim
- the property of a member of the family unit of the alleged perpetrator
that causes the alleged victim to reasonably fear for, or to
be reasonably apprehensive about, his or her own wellbeing or safety.[15]
Relevant family violence is not limited to physical harm. It
may also include other forms of abuse such as psychological and/or financial
abuse, which is consistent with the above definition.
Limitations on sponsorship
There are currently some limitations on sponsorship. A
sponsor who has previously sponsored a partner or prospective marriage visa
applicant cannot sponsor another applicant until at least five years have
passed. A person may sponsor only two partner or prospective marriage visa
applicants in total.[16]
In addition, sponsors cannot sponsor a child where they have an unresolved
charge or a conviction for a ‘registrable offence’.[17]
The ALRC is of the view that these existing limitations provide ‘a measure of
protection for victims of family violence’.[18]
Assessment
of a sponsor’s character
Under Departmental policy, the sponsor’s character is
generally not a relevant factor in assessing whether they can be approved as a
sponsor. However, the sponsor’s character is relevant if the sponsor is
claiming eligibility to sponsor as an eligible New Zealand citizen or a child
under the age of 18 is included in a child or partner category visa application
and the sponsor (or the sponsor’s partner in child category applications) has a
conviction or outstanding charge for offences against children.
To determine whether a sponsor, or the spouse or de facto
partner of a sponsor, has been charged with, or convicted of, a registrable
offence, the Minister may request the sponsor, or the spouse or de facto
partner of the sponsor, to provide a police check from:
a) a
jurisdiction in Australia or
b) a country
in which the sponsor or the spouse or de facto partner has lived for a period,
or a total period, of at least 12 months.[19]
The Minister must refuse to approve a sponsorship if the
sponsor has been charged or convicted of a ‘registrable offence’[20]
unless none of the applicants is under 18 at the time of the decision on the
application or any charge has been disposed of without conviction or the
conviction quashed or otherwise set aside.[21]
There are circumstances where the Minister may nonetheless
decide to approve the sponsorship. For example:
- the
sponsor has completed the imposed sentence more than five years before the date
of the application for approval of the sponsorship
- if
the sponsor has been charged with a registrable offence since the sponsor
completed that sentence — the charge has been withdrawn, dismissed or otherwise
disposed of without the recording of a conviction, and
- there
are compelling circumstances affecting the sponsor or the applicant.[22]
Family
Safety Pack
The Australian Government has developed a Family Safety Pack
for men and women coming to Australia. It includes information on Australia’s
laws regarding domestic and family violence, sexual assault and forced
marriage, and a woman’s right to be safe. The pack includes four factsheets on:
domestic and family violence; sexual assault; forced and early marriage; and
family violence and partner visas. The pack also includes important information
about essential services and emergency contacts in Australia and is translated
into 46 languages. The family safety pack is a key initiative of the Second
Action Plan of the National Plan to Reduce Violence against Women and their
Children 2010–2022.[23]
Sponsor undertakings
Paragraph 1.20(2)(c) of the Migration Regulations relevantly
provides that a sponsor of a partner visa undertakes to assist the applicant,
to the extent necessary, financially and in relation to accommodation:
(i) if the applicant is in Australia—during the period of 2
years immediately following the grant of the provisional or temporary visa; or
(ii) if the applicant is outside Australia—during the period
of 2 years immediately following the applicant's first entry into Australia
after the grant of the provisional or temporary visa.[24]
Current Departmental policy is that when assessing a
sponsorship in relation to a partner or prospective marriage visa application,
it is generally accepted that, by signing form 40 SP sponsorship undertaking, a
sponsor agrees to undertake the obligations required of them as stipulated in
regulation 1.20. If officers have doubt about a sponsor’s intention to comply,
however, it is open to them to request more information or supporting
documents.[25]
Recent Regulation change to strengthen integrity
and improve support for vulnerable applicants
On 1 September 2016, the same day the current Bill was
introduced into Parliament, the Governor-General made Migration Legislation
Amendment (2016 Measures No. 3) Regulation 2016.[26]
Schedule 6 amends Division 1.4B of Part 1 of the Migration Regulations
relating to family violence and commences on 18 November 2016. This
Schedule amends the Migration Regulations to implement part
of the National Plan to Reduce Violence against Women and their Children
2010–2022,[27] developed by Commonwealth, state and
territory governments and the community to reduce violence against women and
their children. More explicitly, it implements action item 11 from the Second
Action Plan 2013–16,[28]
which requires additional information disclosure by the Australian husband or
fiancé:
Action 11 - Reducing violence against women in CALD
[culturally and linguistically diverse] communities
During the First Action Plan, changes were made to the
Migration Regulations 1994 to improve the operation and accessibility of the
family violence provisions. Following this, under the Second Action Plan,
overseas spouses entering Australia will receive strengthened support by:
- requiring additional information disclosure by the Australian husband or
fiancé applying for an overseas spouse visa; and
- development of resource materials to inform and support these overseas
spouses, including information about essential services and emergency contacts
in Australia.
Opportunities to assist women on other visas who are
experiencing violence will also be explored further.[29]
These regulatory amendments are designed to support applicants
for temporary[30]
partner visas by:
- providing the Minister with the power to request a police check
from the sponsor from a jurisdiction in Australia and/or foreign country (provided
the sponsor has lived in a foreign country for more than 12 months and less
than 10 years prior to the date of the request)[31]
and to refuse to approve the sponsorship of all visa applicants if a requested
police check is not provided
- requiring the Minister to refuse to approve the sponsorship of
each applicant for the visa if the sponsor has been convicted of a ‘relevant
offence’[32]
and, as a result of those convictions, has a ‘significant criminal record’.[33]
However, the Minister may approve the sponsorship if he considers it reasonable
to do so, having regard to matters such as the length of time that has elapsed
since the sponsor completed the sentence for the relevant offence, the best
interests of any children and the length of the relationship between the
sponsor and the applicant[34]
- allowing the Department to disclose any conviction of the sponsor for a
relevant offence to each visa applicant included in the sponsorship, with the
sponsor’s consent.[35]
This regulatory change will
undoubtedly strengthen the integrity of the programme and improve
support for applicants by giving the Department the ability to share the
sponsor’s relevant offences with the applicant so they can decide whether to
continue with the visa application process and by refusing to approve the
sponsorship for people with serious and violent criminal pasts, and thereby
preventing a visa from being granted to potentially vulnerable people.[36]
Australian Law Reform Commission’s previous consideration of
the need for a sponsorship framework for the sponsored family visa
program
In 2011 the Australian Law Reform Commission (ALRC)
released a Discussion Paper asking whether there was a need to amend the Migration Act and
Migration Regulations to provide for a separate and reviewable criterion for
the grant of a visa:
It was envisaged that such a reform may provide a framework
in which to assess the character of the sponsor. Parallels were drawn with the
requirements for sponsorship of a child, whereby a sponsor must undergo a
character assessment, and the sponsorship must be refused for people who have a
conviction or have committed a registrable offence. [Footnotes omitted].[37]
In its 2011 Report which followed that Discussion Paper, Family Violence and Commonwealth Laws—Improving Legal Frameworks,[38]
the ALRC did not recommend any changes to the sponsorship requirements ‘in
light of the difficulties in implementing a separate sponsorship criterion
without breaching Australia’s international obligations, and adequate framing
of procedural fairness and privacy obligations to the sponsor’.[39]
It relevantly observed:
The problematic
nature of regulating sponsorship
20.75 Stakeholders considered the introduction of a separate
criterion for sponsorship in partner visas to be problematic. DIAC [Department
of Immigration and Citizenship] submitted that:
Such measures
could lead to claims that the Australian Government is arbitrarily interfering
with families, in breach of its international obligations. It could also lead
to claims that the Australian government is interfering with relationships
between Australians and their overseas partners in a way it would not interfere
in a relationship between two Australians.
20.76 The LIV [Law Institute of Victoria] argued that ‘issues
of procedural fairness to the alleged perpetrator, privacy and discrimination
outweigh any potential gains from disclosure to the applicant’.
20.77 On the other hand, some stakeholders supported having a
separate criterion for sponsorship, ‘as it would prevent many potential victims
from being sponsored initially’. There were concerns that despite the current
limitations on sponsorships, ‘there are a number of ways to subvert the
existing protections such as marrying within the newly arrived migrant
sector/community as opposed to re-sponsoring from outside Australia’. The
Refugee and Immigration Legal Service (RAILS) stated that:
sponsors should
submit to a police check in relation to past family violence convictions or
protection orders when making an application to sponsor a spouse/de facto
partner and that there be a discretionary power for the decision maker to
refuse approval of the sponsorship on that basis.
20.78 DIAC noted that there may be a ‘risk that Australian
sponsors could be disadvantaged by previous conduct that occurred a long time
ago’.
20.79 The ALRC reiterates its view expressed in Equality Before the Law,
that the ‘Australian government has a special responsibility to immigrant women
who are particularly vulnerable to abuse and the consequences of abuse’. Rather
than instituting a separate criterion for sponsorship, the ALRC considers that
the safety of victims of family violence can be promoted through targeted
education and information dissemination. [Footnotes omitted].[40]
The Government’s Statement of Compatibility with Human
Rights notes the following with respect to the right to family and rights
relating to children:
Any limitations on the right to family, through the ability
to refuse sponsorship for a family visa, are reasonable and necessary for the
safety and welfare of prospective migrants and minor children, who are among
the most vulnerable in the community ... The continuation of existing waiver and
appeal provisions ensure that children will not be arbitrarily denied access to
their parents.[41]
With respect to the right not to be tried or punished
twice, the Government’s statement relevantly observes:
Under the proposed sponsorship framework, sponsor applicants
will be subject to refusal as a result of certain past convictions. The refusal
authority will be a discretionary power that will balance the relevant past
history of the sponsor applicant with both their right of access to other
family members and possible risk to other family members. Those sponsors
refused will be afforded natural justice and can seek merits review of the
decision.[42]
Finally, with respect to the right to privacy, the
Government notes:
Any limitations to privacy are required to ensure all parties
to an application are fully aware of their prospective partner’s history,
especially with regards to instances of family violence or previous
sponsorships. Personal information collected, used, stored and disclosed during
this process will be treated in accordance with the Privacy Act 1988.[43]
On the basis of this cursory analysis, it is arguable that
the Government’s assessment does not adequately address Australia’s
international obligations, especially with respect to the concerns raised by
the Department itself when the issue was being considered by the ALRC.[44]
What are the main concerns/issues with the Bill?
The main concerns raised by interest groups who made
submissions to the Senate Legal and Constitutional Affairs Legislation
Committee’s inquiry into the earlier Bill include:
- the
measures proposed represent a fundamental change to Australia’s family
migration program with consequences extending beyond family violence[45]
- family
violence victims are already afforded a measure of protection by the
sponsorship limitations and the ‘family violence exception’ which allows a
person to leave a violent relationship without jeopardising their visa status[46]
- the
proposed amendments have the potential to conflict with Australia’s
international human rights obligations including the principle of
non-interference with the family unit and non-discrimination. Given the
protections already in place, the provisions are not reasonable or
proportionate to achieve a legitimate objective and there is no basis for the
Government’s interference[47]
- aligning
family sponsorship with temporary work sponsorship has no explained merit and
may run counter to the objectives of the Bill (which includes protecting
vulnerable women and children) because family sponsors are different from work
sponsors in that the facts of the relationship are inextricably linked to the
assessment of the sponsorship[48]
- the
amendments make the administration of the migration system more onerous by
adding another layer to the decision-making process. The sponsorship approval
process should be part of the visa application process so that processing
periods are shortened (first stage processing can currently take in excess of
24 months) and so visa applicants can remain in Australia while the sponsor
pursues merits review of an adverse decision[49]
- the
Bill does not specify the criteria to be satisfied by a sponsor but any such
criteria should be directed solely to the welfare and safety of a visa applicant
and not involve consideration of the sponsor’s character or criminal history
because having a criminal past does not necessarily mean that they pose an
unacceptable risk to the visa applicant and could lead to discrimination and
double punishment. Also, no provision appears to have been made for a
disclosure exception under the Commonwealth’s Spent Convictions Scheme under
which an individual is permitted not to disclose certain criminal convictions
in particular circumstances. The ability to cancel an approved sponsorship
means that a visa applicant will no longer be eligible to be granted a visa or
liable for visa cancellation and removal which may in turn deter full
disclosure which would be counterproductive to the aims of the Bill[50]
- existing
powers largely address many of the concerns surrounding inappropriate use of
the program, serial sponsors, and protection of children[51]
- the
Migration Regulations 1994 could easily be amended to explicitly require that
sponsors for a family visa must supply a police check. However, there are
inherent difficulties in relying on police checks as evidence of previous
behaviour because different countries and their respective legal systems have
different understandings and laws concerning family violence which means incidents
may not be recorded by the police, just as family violence is under-reported in
Australia[52]
- the
imposition of statutory obligations and sanctions has not been defined,
justified or explained. Depending on the nature of the obligations to be imposed,
they have the potential to place greater hardship on applicants and prevent
applicants achieving the basic right to companionship and family life. For
example, requiring a sponsor to meet minimum financial thresholds for
sponsorship (as was done in the United Kingdom) could prevent newly arrived
migrants (such as refugees) and other lower-income citizens from sponsoring
their partners[53]
- it
may be inappropriate to impose sanctions if the failure to comply with an obligation
is due to family violence (manipulative or controlling behaviour) as
sanctioning a sponsor may place the applicant at a greater risk of harm. If the
failure to comply is because of severe financial hardship then the imposition
of sanctions will only add to the existing hardship and deter people from
seeking aid and assistance[54]
- the
provisions are intended to prevent people from entering into relationships
where there is a risk of family violence but such decisions ought to be made by
the individuals themselves, rather than by the Government[55]
- information
sharing should not extend to prior migration-related activities or matters that
are not relevant to the safety and welfare of the visa applicant. Also it is
not clear why it is reasonable or necessary for the information to be disclosed
to other agencies. Provisions enabling the sharing of information need to
undergo rigorous scrutiny to ensure that the prescribed information that can be
shared does not infringe the privacy of the Australian sponsor or the visa
applicant[56]
- a
Privacy Impact Assessment (PIA) should have been prepared to provide an
additional safeguard and scrutiny mechanism. Greater certainty about the
privacy impacts of the new framework could be achieved by specifying some of
the detail in the Bill (such as some kinds of personal information that the
Minister may disclose) with the possibility of further prescriptions being made
in the Regulations. A requirement that the Minister notify an individual that
personal information about them has been disclosed and a requirement that the
Minister consider the privacy of individuals before disclosing personal
information could extend the protection of an individual’s privacy[57]
- there
are alternative methods to strengthen the integrity of Partner visas and the
protection for family violence victims[58]
- far
greater resources and initiatives are required to genuinely improve the
management of family violence in the visa program, and these must go beyond the
refusal of the sponsor’s application[59]
- the
Government should take further action to provide support to migrants who have
experienced family violence, by broadening the definition of family violence in
the Migration Regulations, as recommended by the Victorian Royal Commission
into Family Violence. This would allow a person who experiences violence
perpetrated by a family member other than the person’s spouse to apply for the ‘family
violence exception’ and by adopting the recommendations made by the ALRC that
the family violence exception be expanded to cover secondary applicants for
onshore permanent visas, and holders of a Prospective Marriage (Subclass 300)
visa who have experienced family violence but who have not married their
Australian sponsor.[60]
Committee consideration
Senate Legal and Constitutional Affairs Legislation
Committee
The earlier version of this Bill was referred to the Senate
Legal and Constitutional Affairs Legislation Committee for inquiry and report
by 10 May 2016.[61]
However, this inquiry lapsed upon dissolution of the Senate and the House of
Representatives on 9 May 2016 for the general election on 2 July 2016.[62]
The Committee received nine submissions.[63]
The views expressed therein are summarised above under the heading ‘What are the main concerns/issues with the Bill?’.
On 15 September 2016, the Senate again referred
the Bill to the Legal and Constitutional Affairs Legislation Committee for
inquiry and report by 10 October 2016.[64] The Committee recommended
that the Senate pass the Bill.[65] On the basis of ‘significant concerns’ about
the Bill raised by submitters, the Australian Greens issued a dissenting report
recommending that the Senate reject the Bill and calling for ‘increased
education on rights and supports available to respond to family violence for
Spouse Visa and Partner Visa holders’.[66]
Senate Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny
of Bills considered the earlier version of the Bill and commented on the delayed/uncertainty
of commencement.[67]
However, the commencement of this Bill has been changed to 1 July 2017, thereby
arguably negating the Committee’s previous concerns.
Policy position of non-government
parties/independents
At time of writing it is not known whether the Opposition
and the crossbenchers will support or oppose the Bill.
Position of major
interest groups
While the majority of submitters to the Senate Legal and
Constitutional Affairs Legislation Committee’s inquiry into the earlier Bill supported
the broad policy objective of improving the management of family violence in
the delivery of the program, they largely opposed the measures contained in the
earlier Bill (as drafted) and supported the recommendations of the ALRC (as
discussed above).[68]
Financial implications
The Explanatory Memorandum notes that the financial impact
of the Bill is low. Any costs associated with the implementation of the
proposed amendments will be met from within existing resources of the
Department of Immigration and Border Protection.[69]
Statement of Compatibility
with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[70]
Parliamentary Joint Committee on Human Rights
The Committee examined the earlier Bill in its Thirty-seventh report of the 44th Parliament. It concluded that
the Bill did not raise human rights concerns.[71]
Key provisions
Definitions
Currently the Migration Act applies a sponsorship
framework only in relation to the temporary sponsored work visa program. As
discussed above, the Bill proposes to extend this framework to the sponsored
family visa program. Items 1 to 3 of the Bill make changes to the
definitions in section 5 of the Act to facilitate this change. Currently
section 5 contains a definition of ‘approved sponsor’, which will be repealed
and replaced by item 2 of the Bill to encompass an ‘approved family
sponsor’ and an ‘approved work sponsor’. Definitions of these terms will be
inserted by items 1 and 3 respectively.
An ‘approved family sponsor’ (item 1) will be a
person approved by the Minister as a family sponsor under section 140E of the
Act whose approval has not been cancelled under section 140M or ceased to have
effect under section 140G. (Sections 140E, 140G and 140M will be amended by items
12 to 17, 20 to 21 and 51 to 54, as
discussed below.)
An ‘approved work sponsor’ (item 3) will be a person
approved by the Minister as a work sponsor under section 140E of the Act whose
approval has not been cancelled under section 140M or ceased to have effect
under section 140G.
Changes to Division 3A of Part 2 of the
Act—Sponsorship
Section 140AA of the Act currently sets out the purposes
of the temporary sponsored work visa program, as contained in Division 3A of
Part 2 of the Act. As the Bill will amend Division 3A of Part 2 so that it
encompasses both work sponsorship and family sponsorship, section 140AA needs
to be amended to reflect the purposes of both types of sponsorship. This is
achieved by items 4 to 10 of the Bill.
The current purposes of the Division will become the
purposes of the temporary sponsored work visa program in new subsection
140AA(1) (items 5 to 9). The purposes of the sponsored family visa
program are set out at proposed subsections 140AA(2) as:
- strengthening
the integrity of the program
- placing
greater emphasis on the assessment of persons as family sponsors and
- improving
the management of family violence in the delivery of the program.
Proposed subsection 140AA(3) provides that these
purposes are to be achieved by establishing a framework:
- requires
the approval of persons as family sponsors before any visa applications are
made
- imposes
obligations on persons who are or were approved family sponsors
- provides
for sanctions if obligations are not met and
- facilitates
the sharing of personal information.
Minister to approve
family sponsors
The Minister currently approves sponsors in connection
with the temporary sponsored work visa program under section 140E. Items 12
to 17 of the Bill propose amendments so that section 140E will cover
approval of family sponsors as well. Work sponsors will continue to be approved
under subsection 140E(1), as amended by items 13 and 14. Item
15 inserts proposed subsection 140E(1A), which will cover family
sponsors. It will require the Minister to approve a family sponsor in relation
to one or more classes set out in the regulations for the purposes of section
140E(2), if prescribed criteria have been satisfied. Subsection 140E(2), as
amended by item 16, will provide that the regulations must
prescribe classes in relation to which a person may be approved as a work
sponsor or a family sponsor.[72]
Subsection 140E(3), as amended by item 17, will allow the regulations to
prescribe different criteria for different kinds of visa, different classes of
approved work sponsor or family sponsor, and different classes of people within
those classes.
Minister’s
responsibility in relation to sponsorship obligations
Section 140 of the Act requires a person who is approved
as a sponsor to satisfy the sponsorship obligations prescribed by the
Regulations. Item 33 will amend section 140 so that it will cover both work
sponsors and family sponsors and allow different kinds of obligations to be
prescribed for each. Section 140HA of the Act requires the Minister to take all
reasonable steps to ensure that the regulations made for the purpose of section
140 include specific obligations, such as the requirement to pay a market
salary rate, pay the costs of locating and removing a former visa holder from
Australia and ensuring that the visa holder participates in an occupation,
program or activity nominated by the sponsor. Items 34 to 38 amend
section 140HA to specify that the obligations currently listed in that section
are relevant only to work sponsors.
Item 39 inserts proposed subsections 140HA(2A) and
(2B) which refer specifically to approved family sponsors. Proposed
subsection 140HA(2A) requires the Minister to ensure that regulations made
under section 504 (the regulation making power in the Act) include obligations
to keep and provide information to the Minister and to notify the Minister of
any changes in the circumstances of the person, a visa holder or a former visa
holder. Proposed subsection 140HA(2B) provides that these obligations
may apply to all approved family sponsors or specified classes of sponsors.
Disclosure of personal information
Section 140ZH of the Act sets out the parties to whom the
Minister may disclose personal information about visa holders and sponsors. The
information that may be disclosed and the circumstances under which such
disclosures may be made are set out in the regulations.[73]
The regulations also prescribe the circumstances under which the recipient may
use or disclose the provided personal information.[74]
Currently, these disclosures concern only the sponsored work visa program.
Item 61 repeals and replaces existing subsection
140ZH(1) with proposed subsections 140ZH(1) and 140ZH(1A). Proposed
subsection 140ZH(1) will maintain the current parties to whom information
may be disclosed in relation to work sponsors and related visa holders, but has
been redrafted.
Proposed subsection 140ZH(1A) will set out the
parties to whom information relating to a family sponsor or related visa
applicant may be disclosed. It will provide for the following disclosures in
Table 1:
Table 1: Disclosure of personal
information
Disclosure of personal information |
Column 1 |
Column 2 |
Column 3 |
Item |
If the personal information is about ... |
then, the Minister may disclose that personal
information to the following ... |
1 |
a person who proposes to apply for a visa of a
prescribed kind (however described) |
(a) an applicant for approval as a family sponsor in
relation to the person;
(b) an approved family sponsor of the person; (c) an agency of the Commonwealth, or of a State or
Territory, prescribed by the regulations |
2 |
a person who is an applicant for, or a holder or former
holder of, a visa of a prescribed kind (however described) |
(a) an approved family sponsor of the person;
(b) an agency of the Commonwealth, or of a State or
Territory, prescribed by the regulations |
3 |
an applicant for approval as a family sponsor |
(a) a person who proposes to apply for a visa if the
applicant is approved as a family sponsor;
(b) an agency of the Commonwealth, or of a State or
Territory, prescribed by the regulations |
4 |
an approved family sponsor of a person mentioned in
item 1 or 2 of this table |
(a) the person;
(b) an agency of the Commonwealth, or of a State or
Territory, prescribed by the regulations |
5 |
a former approved family sponsor of a person who is an
applicant for, or a holder of, a visa of a prescribed kind (however
described) |
(a) the person;
(b) an agency of the Commonwealth, or of a State or
Territory, prescribed by the regulations |
Source: proposed
subsection 140ZH(1A) of the Migration Act, at item 61 of the
Bill.
This provision will allow disclosure of the prescribed
personal information about an applicant for approval as a family sponsor to the
prospective visa applicant. The Minister has indicated that this personal
information will include police checks.[75]
The circumstances in which such disclosures may be made may be set out in the
regulations (subsection 140ZH(2) as amended by item 62 of the Bill). Item
71 of the Bill provides that new subsections 140ZH(1) and (1A) apply in
relation to the disclosure of personal information after the Bill commences,
regardless of whether that information was collected before or after that time.
[1]. Parliament
of Australia, ‘Migration
Amendment (Family Violence and Other Measures) Bill 2016 homepage’,
Australian Parliament website.
[2]. Migration Act 1958.
[3]. P
Dutton, ‘Second
reading speech: Migration Amendment (Family Violence and Other Measures) Bill
2016’, House of Representatives, Debates, 1 September 2016, pp.
287–88.
[4]. Department
of Immigration and Border Protection (DIBP), Submission
to Senate Legal and Constitutional Affairs Committee, Inquiry into Migration
Amendment (Family Violence and Other Measures) Bill 2016, 2016, pp. 3–4.
[5]. For
statement of Compatibility with Human Rights see Explanatory
Memorandum, Migration Amendment (Family Violence and Other Measures) Bill
2016, p. 22.
[6]. DIBP,
‘PAM3: Div 1.4 - Form 40 sponsors and sponsorship’, Legend database.
[7]. Migration Regulations
1994, Regulation 1.20.
[8]. DIBP,
Submission to Senate Legal and Constitutional Affairs Committee, Inquiry
into Migration Amendment (Family Violence and Other Measures) Bill 2016,
op. cit., p. 3.
[9]. DIBP,
‘Sponsorship for a
partner to migrate to Australia’, Form 40SP, DIBP website.
[10]. DIBP,
‘Partner
migration’, DIPB website, p. 14.
[11]. Australian
Law Reform Commission (ALRC), Family violence and Commonwealth laws: improving legal frameworks, Report, 117, Chapter
20, Migration law: the family violence exception, ALRC, Sydney, 8 February 2011, p. 507.
[12]. DIBP,
‘PAM3: Div 1.4 - Form 40 sponsors and sponsorship’, Legend database.
[13]. DIBP,
Family
violence provisions, fact sheet, DIBP website.
[14]. Ibid.
[15]. ‘Relevant
family violence’ is defined in Migration Regulations 1994, Regulation 1.21.
[16]. DIBP,
Family
stream migration: partners, fact sheet, DIBP website.
[17]. DIBP,
Submission to Senate Legal and Constitutional Affairs Committee, Inquiry
into Migration Amendment (Family Violence and Other Measures) Bill 2016,
op. cit., p. 7. Migration Regulations 1994, Regulation 1.20KB(13) defines ‘registrable
offence’ as: (1) a registrable offence within the meaning of, or an offence that
would be registrable under the following Acts if it were committed in that jurisdiction:
Child Protection (Offenders Registration) Act 2000 (NSW); Sex
Offenders Registration Act 2004 (Vic); Child Sex Offenders Registration
Act 2006 (SA); Crimes (Child Sex Offenders) Act 2005 (ACT); or (2) a
reportable offence within the meaning of the following Acts: the Child Protection
(Offender Reporting) Act 2004 (Qld); Community Protection (Offender Reporting)
Act 2004 (WA); Community Protection (Offender Reporting) Act 2005 (Tas);
Child Protection (Offender Reporting and Registration) Act (NT).
[18]. ALRC,
Family violence and Commonwealth laws, op. cit., p. 506.
[19]. Migration Regulations
1994, subregulation 1.20KB(11).
[20]. ‘Registrable
offence’ is defined in subregulation 1.20KB(13).
[21]. Migration
Regulations 1994, subregulations 1.20KB(2) and (3).
[22]. Migration
Regulations 1994, subregulation 1.20KB(5).
[23]. Department
of Social Services (DSS), ‘Family
Safety Pack’, DSS website, last updated 5 April 2016. DSS, The
National Plan to Reduce Violence against Women and their Children 2010–2022,
DSS website, last updated 12 January 2015.
[24]. Migration
Regulations 1994, subregulations 1.20KB(2).
[25]. DIBP,
‘PAM3: Div 1.4 - Form 40 sponsors and sponsorship’, Legend database.
[26]. Migration Legislation
Amendment (2016 Measures No. 3) Regulation 2016.
[27]. DSS,
The
national plan to reduce violence against women and their children 2010–2022,
2011, DSS website.
[28]. DSS,
‘Moving
ahead: the Second Action Plan 2013–16 of the National Plan to reduce violence
against women and their children 2010–2022’, [September 2014], DSS website.
[29]. Ibid.,
p. 27.
[30]. As
the changes in Schedule 6 are intended to apply to new visa applications made
on or after the commencement date, and given that a person can only be granted
a permanent partner visa (that is, a Partner (Migrant) (Class BC) visa or a
Partner (Residence) (Class BS) visa) if they first hold a temporary partner
visa, it is sufficient for this regulation to apply to temporary partner visa
applications: Statement of Compatibility with Human Rights, Migration
Legislation Amendment (2016 Measures No. 3) Regulation 2016, p. 34.
[31]. Migration
Regulations 1994, subregulation 1.20KC(5).
[32]. ‘Relevant
offence’ is broadly defined to include the types of offences which are
indicative of a sponsor’s propensity to violence, other abusive behaviours and
offences committed against potentially vulnerable people: Migration Regulations
1994, subregulation 1.20KC(2).
[33]. ‘Significant
criminal record’ includes a sentence of imprisonment of 12 months or more (or
two or more terms of imprisonment where the total of those terms is 12 months
or more): Migration Regulations 1994, subregulation 1.20KD(1).
[34]. Migration
Regulations 1994, subregulation 1.20KC(4).
[35]. If
the prospective sponsor does not provide the consent, then the visa applicant
would not meet the criteria for the grant of visa: Migration Regulations 1994,
subclauses 300.222(2) and 309.222(2).
[36]. Statement
of Compatibility with Human Rights, Migration
Legislation Amendment (2016 Measures No. 3) Regulation 2016.
[37]. ALRC,
Family violence and Commonwealth laws, op. cit.
[38]. Ibid.
[39]. Ibid.,
p. 506.
[40]. Ibid., pp. 506–508. For further information
about education, training and information dissemination see paragraphs pp.
508–12 of the ALRC report.
[41]. Statement
of Compatibility with Human Rights, op. cit., pp. 24–25.
[42]. Statement
of Compatibility with Human Rights, op. cit., p. 25.
[43]. Statement
of Compatibility with Human Rights, op. cit., p. 24.
[44]. See
also Law Council of Australia, Submission
to Senate Legal and Constitutional Affairs Committee, Inquiry into Migration
Amendment (Family Violence and Other Measures) Bill 2016, (March 2016 Bill),
18 April 2016, p. 7.
[45]. Australian
National University (ANU) College of Law Migration Law Program, Submission
to Senate Legal and Constitutional Affairs Committee, Inquiry into Migration
Amendment (Family Violence and Other Measures) Bill 2016, (March 2016
Bill), 14 April 2016.
[46]. Ibid.
[47]. Law
Council of Australia, Submission
to Senate Legal and Constitutional Affairs Committee, Inquiry into Migration
Amendment (Family Violence and Other Measures) Bill 2016, (March 2016
Bill), 18 April 2016.
[48]. Migration
Institute of Australia (MIA), Submission
to Senate Legal and Constitutional Affairs Committee, Inquiry into Migration
Amendment (Family Violence and Other Measures) Bill 2016, (March 2016
Bill), 11 April 2016.
[49]. Law
Council of Australia, Submission to Senate Legal and Constitutional Affairs
Committee, op. cit.
[50]. Ibid.;
Immigration Advice and Rights Centre (IARC), Submission
to Senate Legal and Constitutional Affairs Committee, Inquiry into Migration
Amendment (Family Violence and Other Measures) Bill 2016, (March 2016
Bill), 13 April 2016.
[51]. ANU
College of Law Migration Law Program, Submission to Senate Legal and
Constitutional Affairs Committee, op. cit.
[52]. Federation
of Ethnic Communities’ Councils of Australia (FECCA), Submission
to Senate Legal and Constitutional Affairs Committee, Inquiry into Migration
Amendment (Family Violence and Other Measures) Bill 2016, (March 2016
Bill), 11 April 2016.
[53]. ANU
College of Law Migration Law Program, Submission to Senate Legal and
Constitutional Affairs Committee, op. cit.
[54]. IARC,
Submission to Senate Legal and Constitutional Affairs Committee, op. cit.
[55]. ANU
College of Law Migration Law Program, Submission to Senate Legal and
Constitutional Affairs Committee, op. cit.
[56]. IARC,
Submission to Senate Legal and Constitutional Affairs Committee, op. cit.
[57]. Law
Council of Australia, Submission to Senate Legal and Constitutional Affairs
Committee, op. cit.; Office of the Australian Information Commissioner, Submission
to Senate Legal and Constitutional Affairs Committee, Inquiry into Migration
Amendment (Family Violence and Other Measures) Bill 2016, (March 2016
Bill), 12 April 2016.
[58]. ANU
College of Law Migration Law Program, Submission to Senate Legal and
Constitutional Affairs Committee, op. cit.
[59]. Coalition
Against Trafficking in Women Australia (CATWA), Submission
to Senate Legal and Constitutional Affairs Committee, Inquiry into Migration
Amendment (Family Violence and Other Measures) Bill 2016, (March 2016
Bill), 6 April 2016.
[60]. ANU
College of Law Migration Law Program, Submission to Senate Legal and
Constitutional Affairs Committee, op. cit.; Law Council of Australia, Submission
to Senate Legal and Constitutional Affairs Committee, op. cit.
[61]. Senate
Legal and Constitutional Affairs Legislation Committee, Inquiry
into Migration Amendment (Family Violence and Other Measures) Bill 2016,
The Senate, Canberra, 2016.
[62]. Ibid.
[63]. Submissions
to the Senate Legal and Constitutional Affairs Committee, Inquiry into Migration Amendment (Family Violence and Other Measures) Bill 2016,
(March 2016 Bill), op. cit.
[64]. Senate
Standing Committee for Selection of Bills, Report,
6, 2016, The Senate, 15 September 2016, p. 3.
[65]. Senate
Legal and Constitutional Affairs Legislation Committee, Inquiry
into Migration Amendment (Family Violence and Other Measures) Bill 2016,
The Senate, Canberra, 10 October 2016.
[66]. Australian
Greens, Dissenting
report, Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into Migration Amendment (Family Violence and Other Measures) Bill 2016,
The Senate, Canberra, 10 October 2016, pp. 29–30.
[67]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, 5, 2016, The Senate, 3 May 2016.
[68]. Submissions
to the Senate Legal and Constitutional Affairs Committee, Inquiry into Migration Amendment (Family Violence and Other Measures) Bill 2016,
(March 2016 Bill), op. cit.
[69]. Explanatory
Memorandum, Migration Amendment (Family Violence and Other Measures) Bill
2016, p. 1.
[70]. The
Statement of Compatibility with Human Rights can be found at page 22 of the
Explanatory Memorandum to the Bill.
[71]. Parliamentary
Joint Committee on Human Rights, Thirty-seventh
report of the 44th Parliament, 2 May 2016, p. 1.
[72]. Regulation
2.58 of the Migration Regulations sets out the classes of sponsor for the
purposes of current subsection 140E(2).
[73]. Regulations
2.103 and 2.104 of the Migration Regulations.
[74]. Regulation
2.105 of the Migration Regulations.
[75]. Dutton,
‘Second reading speech: ‘Migration Amendment (Family Violence and Other
Measures) Bill 2016’, op. cit.
For copyright reasons some linked items are only available to members of Parliament.
© Commonwealth of Australia
Creative Commons
With the exception of the Commonwealth Coat of Arms, and to the extent that copyright subsists in a third party, this publication, its logo and front page design are licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia licence.
In essence, you are free to copy and communicate this work in its current form for all non-commercial purposes, as long as you attribute the work to the author and abide by the other licence terms. The work cannot be adapted or modified in any way. Content from this publication should be attributed in the following way: Author(s), Title of publication, Series Name and No, Publisher, Date.
To the extent that copyright subsists in third party quotes it remains with the original owner and permission may be required to reuse the material.
Inquiries regarding the licence and any use of the publication are welcome to webmanager@aph.gov.au.
Disclaimer: Bills Digests are prepared to support the work of the Australian Parliament. They are produced under time and resource constraints and aim to be available in time for debate in the Chambers. The views expressed in Bills Digests do not reflect an official position of the Australian Parliamentary Library, nor do they constitute professional legal opinion. Bills Digests reflect the relevant legislation as introduced and do not canvass subsequent amendments or developments. Other sources should be consulted to determine the official status of the Bill.
Any concerns or complaints should be directed to the Parliamentary Librarian. Parliamentary Library staff are available to discuss the contents of publications with Senators and Members and their staff. To access this service, clients may contact the author or the Library‘s Central Enquiry Point for referral.