Introduction and background
On 10 November 2016, the Senate referred an inquiry into the provisions of the Migration
Amendment (Visa Revalidation and Other Measures) Bill 2016 (the bill) to
the Senate Legal and Constitutional Affairs Legislation Committee (the committee)
for inquiry and report by 28 November
The Senate Selection of Bills Committee recommended that the bill be
referred to the committee for inquiry to further investigate the potential
impacts of the bill and seek views from affected stakeholders.
Background and purpose of the bill
The Minister for Immigration and Border Protection, the
Hon Peter Dutton MP (the Minister) introduced the bill into the
House of Representatives on 19 October 2016. In his second reading speech, he
stated that the bill's provisions would support two key government initiatives
in his portfolio, namely:
...initiatives which seek to promote Australia as an attractive
destination...[and measures that] facilitate the use of enhanced technology to
improve the traveller experience at the Australian border.
The Minister stated that the bill contributes to the government's
commitment to boosting the Australian tourism sector, noting that the sector
provides employment for around 600,000 people and contributes more than
$120 billion to the domestic economy.
Moreover, he also noted the new class of visa would encourage repeat visits by Chinese
business travellers, which would also benefit the wider Australian economy.
The trial of 10-year visas
One government measure aimed at increasing the number of tourists
visiting Australia is the introduction of a 10-year visa for holidaymakers and
businesspeople. In his second reading speech, the Minister noted the positive
effects for the tourism industry and the Australian economy more generally that
would stem from this initiative:
The introduction of a 10-year visitor visa will encourage
repeat visits by genuine tourists and businesspeople choosing Australia as
their preferred destination.
This new class of visa will be trialled in a pilot program for Chinese
nationals commencing in December 2017. This measure was initially
proposed by the government's 2015 White Paper on Developing Northern
Australia, alongside other measures to encourage Chinese tourists and
business travellers, which included the ability to lodge visa applications
online, as well as the provision of a fast-track visa approval service with a
The use of 'SmartGates' to enhance
Some Australian airports currently allow some passengers arriving from
overseas to self-process through immigration clearance, by presenting an
ePassport to a 'SmartGate kiosk'. This kiosk captures biometric information,
such as the underlying bone structure of the face, distances between facial
features such as eyes, nose, mouth and ears, which is then checked against a
person's ePassport to identify the traveller.
In his second reading speech, the Minister commented that in 2014-15 around
six million people self-processed using SmartGates, of a total of more than 19
million arrivals into Australian airports. Additionally, he observed that
improvements to the current system made by the provisions of the bill would
help meet any future increase of the number of visitors to Australia, which is
forecasted to rise by almost 25 per cent in the next four years.
This future need, the Minister suggested, had informed the government's
plans to increase the use of the SmartGate technology in the future to enhance
the experience of travellers, whilst also delivering efficiencies to
As part of the 2015-16 budget, the government committed $93.7
million to the Seamless Traveller initiative, which included the expansion of
SmartGates, and when fully implemented, we expect 90 per cent of
travellers will self-process through these gates.
Overview of the provisions of the bill
The bill consists of three schedules amending the Migration Act 1958
(the Migration Act) that would:
introduce a new revalidation check framework for visas, initially
pertaining to a pilot of the proposed 10-year visa for visitors from China
clarify when a visa 'ceases to be in effect' under the Act
(Schedule 2); and
enable the use of contactless technology to clear travellers
coming through the immigration clearance system (SmartGate) (Schedule 3).
Revalidation check for visas
Given the long timeframe of the new 10-year visa, the Minister noted
that it was likely the personal circumstances of some visa holders would change
over the period their visa was valid. To manage potential risks this may pose
he stated that Schedule 1 of the bill:
...introduces a mechanism that will allow for the department to
seek revalidation of certain information from visa holders over the life of the
visa, either through a 'routine' revalidation or a 'public interest'
This 'revalidation' will be used to ensure that visa holders
continue to meet genuine temporary entrant, identity, health, character, passport,
national security and other criteria over the 10-year period.
Moreover, the Minister also noted that a further potential risk was that
'a serious incident overseas' could necessitate a reassessment of a number of
individuals holding certain visas. Given this, he provided more detail on the
'public interest revalidation check', which would be used:
...to manage specific, serious, or time-critical risks in
relation to an identified cohort of visa holders. In such circumstances,
issuing a personal ministerial revalidation requirement will immediately
prevent specified visa holders from being able to travel to and enter Australia
until they successfully revalidate their visa.
Cessation of visas that are not in
effect (Schedule 2)
Schedule 2 proposes amendments to the Act that would clarify the
circumstances under which a visa can cease to be in effect. The Minister stated
in his second reading speech that, while most visas come into effect at the
time they are granted, there are a small number of visa classes that do not
come into effect immediately. The Minister highlighted that the bill would
clarify aspects of the current Act as:
There is currently ambiguity as to whether a 'ceasing event'
under sections 82, 173 and 174 of the Migration Act can apply to a visa that
has been granted, but not in effect.
The amendments contained within schedule 2 will ensure that,
subject to limited exceptions, a visa will cease if a relevant ceasing
provision applies to it, even if the visa is not in effect at the relevant time.
The Minister stated that this was a key measure to support the new
revalidation check framework introduced by the bill, especially as it would 'increase
the number of persons who may hold a visa that is not in effect at a particular
Enhancing immigration clearance
Schedule 3 of the bill would introduce provisions to enhance the use of
facial recognition technology by airport 'SmartGates'.These provisions would
...the requirement for travellers to present a travel document for
identity purposes, such as a passport, unless requested to do so by a clearance
officer or an authorised system. The identity of a traveller will be confirmed
using a unique biometric identifier, such as a facial image instead of document
based checks. SmartGates embedded with contactless technology will be gradually
rolled out to major airports from May 2017. The gradual roll out will minimise
disruptions to Australian Border Force operations and traveller processing.
Concerns raised by the Scrutiny of Bills committee
The committee is aware that the Senate Scrutiny of Bills Committee has raised
concerns about the proposed amendments made by the bill and sought further
clarification from the Minister on a number of matters, namely:
Why the revalidation check is linked to whether there is any
'adverse information' about the visa holder, rather than whether they still met
the requirements for the initial grant of the visa (Item 4, proposed subsection 96a);
Why the legislation does not define 'adverse information', which
would provide more certainty for visa holders who could be subject to
revalidation checks (Item 4, proposed subsection 96a);
Why the proposed ministerial power to subject a person to a
revalidation check is expressed to relate to a visa of a prescribed kind,
without providing details of, or limits to, the types of visas that may be
prescribed (Item 4, proposed subsection 96B(1));
Why a legislative instrument setting out a specified class of
persons who are to complete revalidation checks should not be subject to
disallowance in the Parliament (Item 4, proposed subsection 96E(1));
Whether the decisions made under a proposed new subdivision BA of
Division 3 of Part 2 of the Act will be reviewable, which is not explained
in the Explanatory Memorandum (Item 4).
The committee understands that, at the time of writing, the Scrutiny of
Bills Committee has not received comments from the Minister on these issues.
The Explanatory Memorandum includes a financial impact statement which
states that the amendments made by the bill would result in increased
Commonwealth revenues. These would be delivered by amendments made by Schedules
1 and 3 of the bill, with Schedule 2 having a 'low financial impact'.
The Explanatory Memorandum forecasts that the Visa Application Charge
(VAC) introduced under Schedule 1, would have a net impact of $33.5 million
in administered revenue over the forward estimates from 2016-17.
Regarding Schedule 3 of the bill, the Explanatory Memorandum states that
improvements to contactless automated immigration clearance technology (SmartGates)
are expected to save the Commonwealth $32.9 million a year in compliance
Compatibility with human rights
The Explanatory Memorandum states that the bill is compatible with human
rights and freedoms recognised or declared in the international instruments
listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Conduct of the inquiry
Details of the inquiry were advertised on the committee's website,
including a call for submissions by 18 November 2016, as well as links to the
bill and relevant documents.
The committee also wrote to some individuals and organisations directly, inviting
them to make submissions.
The committee received six submissions, which are listed at appendix 1
of this report. These submissions are available on the committee's website.
Structure of this report
This report consists of two chapters:
This chapter provides a background and overview of the bill, as
well as the administrative details of the inquiry.
Chapter 2 sets out the concerns that were raised by submitters to
the inquiry, as well as the committee's views and recommendations.
The committee thanks all submitters to this inquiry, particularly noting
the short timeframe given to them for the lodgement of submissions.
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