Dana Wortley (SA, Australian Labor Party) Share this | Link to this | Hansard source

Following the receipt of satisfactory responses on behalf of the Standing Committee on Regulations and Ordinances, I give notice that on the next day of sitting I shall withdraw business of the Senate notice of motion No. 2 standing in my name for six sitting days after today for the disallowance of the Migration Amendment Regulations 2007 No. 14 and business of the Senate notice of motion No. 1 standing in my name for eight sitting days after today for the disallowance of the Torres Strait Regional Authority Section 142S Declaration 2008. I seek leave to incorporate in Hansard the committee’s correspondence regarding these instruments.

Leave granted.

The document read as follows—

Migration Amendment Regulations 2007 (No. 14), Select Legislative Instrument 2007 No. 356

13 March 2008

Senator the Hon Chris Evans

Minister for Immigration and Citizenship

Suite MG.68, Parliament House

CANBERRA ACT 2600

Dear Minister

The Committee’s function is to examine all legislative instruments subject to disallowance or disapproval by the Senate to ensure that they comply with broad principles of personal rights and parliamentary propriety.

The Committee has considered the following Regulations made under the Migration Act 1958 and identified the matters that may not comply with those principles.

Migration Amendment Regulations 2007 (No. 12), Select Legislative Instrument 2007 No. 314

This instrument introduces into the principal Regulations a requirement for applicants for certain visas to sign a statement that they will respect Australian values and will comply with Australian law for the duration of their stay.

The Committee notes that item [316] of the instrument inserts new provisions that require the Minister to approve, by instrument in writing, one or more values statements for this purpose. The Committee would appreciate your advice as to whether such a written instrument will be a disallowable instrument and be subject to Parliamentary scrutiny.

Migration Amendment Regulations 2007 (No. 14), Select Legislative Instrument 2007 No. 356

This instrument makes various amendments to certain visas and visa subclasses in the principal Regulations.

The amendments made by Schedule 1 to this instrument commence retrospectively. They reintroduce the power of the Minister to grant refunds of certain visa application charges. The Committee notes that the amendments are intended to correct an error introduced by a previous set of amendments, and are of beneficial effect. The Committee would, however, appreciate your advice about the mechanisms by which applicants who became entitled to a refund during the period of retrospective operation will be made aware of their right to request a refund.

The Committee would appreciate your advice on the above matter as soon as possible, but before 28 April 2008, to enable it to finalise its consideration of these Regulations. Correspondence should be directed to the Chair, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

Senator Dana Wortley

Chair

9 May 2008

Senator Dana Wortley

Chair

Senate Standing Committee on Regulations and Ordinances

Room SG49, Parliament House

CANBERRA ACT 2600

Dear Senator Wortley

Thank you for your letter of 13 March 2008 concerning the Migration Amendment Regulations 2007 (No. 12) and the Migration Amendment Regulations 2007 (No. 14). I respond as follows to the matters raised by the Committee.

Migration Amendment Regulations 2007 (No. 12), Select Legislative Instrument 2007 No. 314 - Values Statements

The written instrument referred to in item [316] of the Migration Amendment Regulations 2007 (No. 12), No. 314, is not subject to disallowance because it is made under Schedule 4 to the Migration Regulations 1994, which is exempted from disallowance by Item 26 of section 44(2) of the Legislative Instruments Act 2003. This was also the case prior to the commencement of the Legislative Instruments Act 2003. There is no current intention to make such an instrument disallowable.

Migration Amendment Regulations 2007 (No. 14), Select Legislative Instrument 2007 No. 356

The amendments made by Schedule 1 to the Migration Amendment Regulations 2007 (No. 14), No. 356, were intended to rectify an unintended consequence of the Migration Amendment Regulations (No. 9) 2007, which restricted the Minister’s refund power where applicants apply for visas by mistake. The latest amendments, which were made on 17 October 2007, restore this power retrospectively to 10 September 2007 and are of beneficial effect. The changes were registered on the Federal Register of Legislative Instruments and were published on my Department’s website at http://www.immi.gov.au/leqislation/amendments/2007/071 017/Ic17102007.htm, which would be available to persons potentially seeking a refund. As the period of retrospectivity was brief, being just over one month, this method of notification was considered sufficient.

I hope the above information is helpful to the Committee. Thank you for bringing these matters to my attention.

Yours sincerely

Chris Evans

Minister for Immigration and Citizenship

19 June 2008

Senator the Hon Chris Evans

Minister for Immigration and Citizenship

Suite MG.68, Parliament House

CANBERRA ACT 2600

Dear Minister

Thank you for your letter of concerning the Migration Amendment Regulations 2007 (No 14), Select Legislative Instrument 2007 No 356. These Regulations retrospectively rectified an unintended restriction on your powers to order a refund where applicants apply for a visa by mistake.

In your letter you note that the changes were notified on the Department’s website, and that this should alert persons to the potential for a refund during the period of retrospective operation. The Committee seeks your further advice as to the number of people potentially able to seek a refund in these circumstances, and whether any other means are available to alert them to this right. In order to preserve its interest in this instrument, and to provide time for consideration of any further advice, the Committee gave notice of intention to disallow this instrument on 18 June 2008.

The Committee would appreciate your advice on the above matter as soon as possible, but before 18 August 2008, to enable it to finalise its consideration of these Regulations. Correspondence should be directed to the Chair, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

Senator Dana Wortley

Chair

12 August 2008

Senator Dana Wortley

Chair Standing Committee on Regulations and Ordinances

Parliament House

CANBERRA ACT 2600

Dear Senator Wortley

Thank you for your letter of 19 June 2008 concerning the Committee’s notice of intention to disallow Migration Amendment Regulations 2007 (No 14), Select Legislative Instrument 2007 No 356 (‘the retrospective amendments’), which retrospectively rectified an unintended restriction on my powers to order a refund where applicants apply for a visa by mistake.

The Committee now seeks my further advice as to the number of people potentially able to seek a refund in these circumstances, and whether any other means, apart from notification on the Department’s website, are available to alert them of this right.

I am unable to advise the Committee as to the number of people potentially able to seek a refund in circumstances where visas have been applied for by mistake and the application is withdrawn. The Committee will understand that this is entirely dependent upon the circumstances of particular applicants, their reasons for applying for visas, and whether or not they have proceeded to withdraw the application. It is impossible to predict when these circumstances are likely to occur or in respect of how many applicants. However, the effect of the retrospective amendments is that if any applicant at any time has sought to withdraw an application by reason of mistake, the discretion to give a refund would be available.

The retrospective amendments also gave effect to the original intention of the Migration Amendment Regulations 2007 (No. 9), Select Legislative Instrument 2007 No 273 (‘the first amendments’) by inserting a new subregulation 2.12F(3A) under which the Minister may refund the visa application charge paid in respect of an application for a Temporary Business Entry (Class UC), Subclass 457 visa which could no longer be granted because of changes to the list of eligible occupation in a Legislative Instrument.

Subclass 457 visa applicants who could not satisfy the visa application criteria due to a change in eligible occupations were notified by my Department through their sponsors that a refund of the visa application charge could be given in these circumstances.

The Department wrote to Subclass 457 sponsors in September 2007, November 2007 and most recently in May 2008. In the most recent correspondence, sponsors were advised to inform their visa applicants of their option to withdraw their visa application and seek a refund in writing.

I have noted that the Committee gave notice of intention to disallow this instrument on 18 June 2008, in order to preserve its interest. I trust that the above information will reassure the Committee that the effect of those retrospective amendments is to allow the refund of visa application charges to the intended recipients; that a refund can now be made in respect of withdrawal of an application at any relevant time; and that every effort has been made to inform and respond appropriately to any applicants adversely affected by the first amendments.

Thank you for bringing this matter to my attention.

Yours sincerely

Chris Evans

Minister for Immigration and Citizenship

Torres Strait Regional Authority Section 142S Declaration 2008

13 March 2008

The Hon Jenny Macklin MP

Minister for Families, Housing, Community Services and Indigenous Affairs

Suite MG.51

Parliament House

CANBERRA ACT 2600

Dear Minister

I refer to the Torres Strait Regional Section 142S Declaration 2008 made under subsection 142S(1) of the Aboriginal and Torres Strait Islander Act 2005. This instrument specifies the membership of the Torres Strait Regional Authority. The Committee’s examination of this instrument has raised the following matters.

Sub-rule 7(6) states that ‘this section displaces section 142Y of the Act’. It is not clear what the authority for this ‘displacement’ is. Paragraph 142S(2)(c) of the Act provides that the Minister may issue a notice that provides for the method and timing of election of certain types of TSRA members. That appears to be the purpose of rule 7 in this Determination. However neither section 142S nor section 142Y of the Act makes specific reference to ‘displacing’ section 142Y. It is also not clear what the word ‘displaces’ means in this context.

I understand that the relevant elections have taken place or are imminent. Could you advise whether uncertainty over the effect of subrule 7(6) is likely to have any effect on these elections?

There also appears to be a cross-referencing error in sub-rule 7(1) of this instrument, where the reference to paragraphs 4(1)(c), (d) and (e) should be ‘paragraphs 6(1)(c), (d) and (e).

Finally, there are some minor typographical errors in this instrument. In the provision dealing with commencement, the word “commence” should be “commences”; in sub-rule 7(2) “as soon a” should read “as soon as”.

The Committee would appreciate your advice on the above matters as soon as possible, but before 28 April 2008, to enable it to finalise its consideration of this instrument. Correspondence should be directed to the Chair, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

Senator Dana Wortley

Chair

28 April 2008

Senator Dana Wortley

Chair

Senate Standing Committee on Regulations and Ordinances

Parliament House

CANBERRA ACT 2600

Dear Senator Wortley

Thank you for your letter of 13 March 2008 about the Torres Strait Regional 1425 Declaration 2008. 1 apologise for the delay in this response.

I note your advice on the technical errors in the Declaration, and these will be corrected as soon as possible after the disallowance period has expired.

As regards the concern about the displacement of section 142Y of the Aboriginal and Torres Strait Islander Act 2005 (the ATSI Act), my Department had sought advice from the Australian Government Solicitor (AGS) on this point prior to drafting. The AGS advice was that the provisions of subsection 142S(2)(c) of the ATSI Act relating to the method and timing of elections were sufficient to justify displacing (as opposed to totally repealing) the section.

I understand that it is unlikely to become an issue in the context of the 2008 elections for the Torres Strait Regional Authority. However, as some doubt has been raised, I will ask my Department to review the relevant provisions with a view to amendments in time for subsequent elections if that is considered appropriate.

Thank you for drawing these matters to my attention.

Yours sincerely

JENNY MACKLIN MP

Minister for Families, Housing, Community and Indigenous Affairs

15 May 2008

The Hon Jenny Macklin MP

Minister for Families, Housing, Community Services  and Indigenous Affairs

Suite MG.51

Parliament House

CANBERRA ACT 2600

Dear Minister

Thank you for your letter of 28 April 2008 responding to the Committee’s concerns with the Torres Strait Regional Section 142S Declaration 2008 made under subsection 142S(1) of the Aboriginal and Torres Strait Islander Act 2005.

In your response you advise that advice was sought from the Australian Government Solicitor (AGS) about the displacement of section 142Y. AGS advised that the provisions of subsection 142S(2)(c) of the Act relating to the method and timing of elections were sufficient to justify displacing (as opposed to totally repealing) the section. The Committee has noted this advice but is still uncertain as to what the authority for the ‘displacement’ is. Accordingly, the Committee would appreciate receiving a copy of the AGS advice to enable it to further consider this matter.

The Committee would appreciate receiving this advice as soon as possible, but before 13 June 2008, to enable it to finalise its consideration of this instrument. Correspondence should be directed to the Chair, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

Senator Dana Wortley

Chair

13 June 2008

Senator Dana Wortley

Chair Senate Standing Committee on Regulations and Ordinances

Parliament House

CANBERRA ACT 2600

Dear Senator Wortley

Thank you for your letter of 15 May 2008 about the declaration under Section 142S of the Aboriginal and Torres Strait Islander Act 2005 (the ATSI Act) in relation to the Torres Strait Regional Authority (TSRA) elections.

I am setting out below a detailed history of the TSRA Rules that govern the composition of the TSRA and the method and timing of election of members. I hope this will assist the Committee in understanding the way in which these provisions have been applied.

Under s142S of the ATSI Act the Minister determines the manner of representation of the TSRA, which is then set out in the TSRA Rules. Membership has been largely derived from local government institutions under Queensland legislation. The TSRA elections have been used only for particular areas in the region, namely the administrative centre of Thursday Island and its neighbouring islands.

Prior to December 2007, 17 members of the TSRA were elected under the Queensland Community Services (Torres Strait) Act 1984 (CSA), which was repealed and replaced with new provisions in the more generally applicable Local Government Act 1993 (LGA) as part of wider local government reform in Queensland. These provisions came into effect in late 2007. Under the CSA, fifteen Torres Strait Island and two of the northern-most Cape York Peninsula communities elected island councils, the chairs of which automatically became members of the TSRA. Two TSRA members were directly elected and another took office as the representative of Thursday Island’s TRAWQ communities. Under the new system, the island councils have been abolished, and their place taken by the Torres Strait Islands Regional Council and the Northern Peninsula Area Regional Council. Each community elects a councillor who automatically becomes a member of the TSRA. Three members, rather than the previous two, are now directly elected under provisions of the ATSI Act.

Because of the changes in Queensland legislation, changes were needed to the TSRA Rules including the replacement of references to the CSA with the LGA and to describe the new membership arrangements.

There was however no change of substance to the Rules in terms of the timing of elections which is the issue you have indicated is concerning the Committee. The former TSRA Rules were determined on 25 February 2003 under the Aboriginal and Torres Strait Islander Act Commission Act 1989 (the ATSIC Act), which has since been repealed and replaced by the ATSI Act. The 2003 Rules provided at subrule 5(2) that a “Torres Strait Regional Authority election must be held as soon as practicable after a quadrennial election for an Island Council is held under the Queensland Act”. This is almost identical to the current subrule 7(2), with the only change being a reference to the new Queensland Local Government Act. It departs from the ATSI Act which envisages three yearly elections, but reflects electoral practice in Queensland since 2004.

Two elections, namely the one on 3 April 2004 and the recent one on 17 May 2008, have been held in accordance with rules made in reliance on our advice that an amendment to the Rules was an appropriate way to deal with the administrative need to have the TSRA elections held concurrently with, or as close as possible to, Queensland local government elections. . The polls for the election held on 17 May 2008 under the current Rules have in the meantime also been declared and the TSRA held its first meeting to elect office holders on 5 June 2008.

I note that the Committee has some reservations about this approach, and I also think that it may be preferable to deal with the issue of election timing through an amendment to the ATSI Act rather than through the subordinate legislation. As I noted in my previous letter, my Department will be conducting a full and comprehensive review of the provisions of the ATSI Act and any issues raised by the Committee will be addressed in the context of this review.

The TSRA elections are conducted by the Australian Electoral Commissioner. A person with standing may make an application to the Court of Disputed Returns if he or she considers that an irregularity has occurred. As we are not aware of any appeal to the Court and the polls have been declared, disallowance of the instrument would cause considerable disruption to the functioning and governance of the TSRA at this stage.

I trust that this further information will assist the Committee in finalising its consideration of this instrument.

Yours sincerely

JENNY MACKLIN MP

Minister for Families, Housing, Community Services and Indigenous Affairs

19 June 2008

The Hon Jenny Macklin MP

Minister for Families, Housing, Community Services and Indigenous Affairs

Suite MG.51, Parliament House

CANBERRA ACT 2600

Dear Minister

Thank you for your letter of 13 June 2008 in relation to the Torres Strait Regional Section 142S Declaration 2008 made under subsection 142S(1) of the Aboriginal and Torres Strait Islander Act 2005. This instrument specifies the membership of the Torres Strait Regional Authority.

In your letter, you detail the history of the TSRA Rules and the effect of changes in relevant Queensland legislation. This addresses some of the Committee’s concerns. However, the Committee seeks your advice specifically on sub-rule 7(6) which states that ‘this section displaces section 142Y of the Act’. It is unusual for delegated legislation to affect the content of primary legislation and the Committee seeks your advice on the legislative authority for this ‘displacement’, particularly as neither section 142S nor section 142Y of the Act makes specific reference to a power to ‘displace’ section 142Y.

It is also not clear what the word ‘displaces’ means in this context (ie, does it completely negate the provision; does it mitigate its effect only to the extent of any inconsistency, or does it have some other meaning?).

Finally, the Committee would appreciate receiving a copy of any legal advice that the Department has obtained on these issues.

The Committee would appreciate your advice on the above matters as soon as possible, but before 23 June 2008, to enable it to finalise its consideration of this instrument. Given this very short timeframe, in order to enable it to maintain its interest in the instrument, and to provide adequate time for the preparation and consideration of any further advice, the Committee will give notice of intention to disallow the Declaration on 23 June 2008 unless a response can be provided by that date. Correspondence should be directed to the Chair, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

Senator Dana Wortley

Chair

12 August 2008

Senator Dana Wortley

Chair

Standing Committee on Regulations and Ordinances

Parliament House

CANBERRA ACT 2600

Dear Senator Wortley

Thank you for your letter of 19 June 2008 about the Torres Strait Regional Authority Section 1425 Declaration 2008. 1 apologise for the delay in replying.

Your letter concerns sub-rule 7(6) of the Declaration which reads “this section displaces section 142Y of the Act’. Specifically your letter expresses concern that it is unusual for delegated legislation to affect the content of primary legislation. You have asked for advice on the legislative authority for this ‘displacement’ including a copy of legal advice obtained by my Department, as well as clarification of what ‘displacement’ means in this context.

I am advised that sub-rule 7(6) of the Declaration by itself does not affect the content of section 142Y of the Act. Rather, sub-rule 7(6) reflects the legal position that section 142Y has no application where a notice that provides for the timing of the election of members of the Torres Strait Regional Authority (TSRA) has been made under section 142S.

The relevant provisions of the Act are sections 142R, 142S and 142Y.

Section 142R provides for the constitution of the TSRA. Subsection 142R(1) provides that ‘subject to any notice in force under section 142S’ the TSRA consists of the eligible number of members elected in accordance with Division 5 of this Part.

Section 142S provides generally that the Minister may determine the manner of representation of the TSRA. Subsection 142(1) provides the Minister may, by notice in the Gazette , declare that he or she is satisfied that the TSRA would best be able to represent the Torres Strait Islanders, and Aboriginal persons, living in the Torres Strait area if it consisted of, or included, persons elected to represent particular communities in that area under the Queensland Act. You will recall that in my letter of 12 June 2008 I outlined the history and practice in relation to TSRA membership.

Subsection 142S(2) provides that a notice under section 142S must also set out details of how the TSRA is to be constituted and may make provision for the method and timing of election of members of the TSRA under the Act.

Subsection 142S(4) provides that a notice under section 142R has effect according to its terms.

Section 142Y of Division 5 of Part 3A of the Act provides for the timing of TSRA elections.

Accordingly, the effect of sub-rule 7(6) is to clarify that because rule 7 of the Declaration makes provision for the timing of election of members of the TSRA which is expressly permitted by paragraph 142S(2)(c) and subsection 142S(4), then section 142Y has no application in relation to the election of those members.

While sub-rule 7(6) uses the word ‘displace’ it would perhaps be more accurate to say that section 142Y has no application as a result of paragraph 142S(2)(c) and subsection 142S(4) of the Act, which expressly permit an instrument of the same kind as the Declaration.

I have attached copies of legal advice on these issues provided by the Australian Government Solicitor in September 2002 and more recently in June 2008.

I hope the Committee finds the advice of assistance in its further consideration of the Declaration, and I would ask that the Committee treat the text as confidential to protect legal professional privilege.

Yours sincerely

JENNY MACKLIN MP

Minister for Families, Housing, Community Services and Indigenous Affairs