John Watson (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Following a briefing by departmental officials and the receipt of satisfactory responses, on behalf of the Regulations and Ordinances Committee, I give notice that at the giving of notices on the next day of sitting I shall withdraw business of the Senate notice of motion No. 1 standing in my name for two sitting days after today for the disallowance of the Migration Amendment Regulations 2006 (No. 1), as contained in Select Legislative Instrument 2006 No. 10. I seek leave to incorporate in Hansard the committee’s correspondence concerning these Regulations.

Leave granted.

The correspondence read as follows—

Migration Amendment Regulations 2006 (No. 1), Select Legislative Instrument 2006 No. 10

30 March 2006

Senator the Hon Amanda Vanstone

Minister for Immigration and Multicultural Affairs

Suite M1.40

Parliament House

CANBERRA ACT 2600

Dear Minister

I refer to the Migration Amendment Regulations 2006 (No. 1), Select Legislative Instrument 2006 No. 10. These Regulations amend the principal Regulations concerning the scope of certain powers of the Minister for Foreign Affairs and the discretion of the Minister for Immigration in granting visas in certain circumstances. Following its consideration of these Regulations, the Committee raises the following matters.

Item [1] of Schedule 1 to these Regulations provides that the Minister for Foreign Affairs may determine, as a ground for cancellation of a visa, that the holder of a visa is a person whose presence in Australia is contrary to Australia’s foreign policy interests, or is directly or indirectly associated with the proliferation of weapons of mass destruction.

According to the Explanatory Statement, the first of these two grounds has been inserted to broaden the scope of the Minister’s discretion so that it covers Australia’s broader foreign policy objectives, rather than being limited to Australia’s relationship with another country. The scope of the amended discretion appears to be very wide. The Committee therefore seeks your advice as to the meaning of the term ‘foreign policy interests’ and whether there are any limitations on this discretion. The Committee also seeks an assurance regarding the rights of appeal that can be exercised by a person whose visa is to be cancelled as a result of this discretion.

The Committee also seeks your advice as to whether the term ‘weapons of mass destruction’ is defined anywhere for the purposes of this provision.

The Committee would appreciate your advice on the above matters as soon as possible, but before 5 May 2006, to enable it to finalise its consideration of these Regulations. Correspondence should be directed to the Chairman, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

John Watson

Chairman

9 May 2006

Senator John Watson

Chairman

Senate Standing Committee on Regulations and Ordinances

Room SG49

Parliament House

Canberra ACT 2600

Dear Senator Watson

Thank you for your letter of 30 March 2006 regarding the Migration Amendment Regulations 2006 (No. 1), Select Legislative Instrument No. 10 of 2006 (‘the MAR 2006 (No. 1)’). The Committee has requested my advice in relation to the amendments made to the Migration Regulations 1994 (‘the Migration Regulations’) in particular relating to the scope of certain powers of the Minister for Foreign Affairs.

The Committee refers to the amendments made by Item [ 1 ] of Schedule 1 to the MAR 2006 (No. 1), to paragraph 2.43(1)(a) of the Migration Regulations, relating to the prescribed grounds on which the Minister for Immigration and Multicultural Affairs may cancel a visa under paragraph 116(1)(g) of the Migration Act 1958 (‘the Act’). As amended by the MAR 2006 (No. 1), paragraph 2.43(1)(a) provides that certain visas may be cancelled where the Minister for Foreign Affairs has personally determined that the holder is a person whose presence in Australia is, or would be, contrary to Australia’s foreign policy interests, or may be directly or indirectly associated with the proliferation of weapons of mass destruction.

The Committee notes that the scope of the amended discretion appears to be very wide, and seeks my advice as to the meaning of the term ‘foreign policy interests’ and whether there are any limitations on this discretion.

The term ‘foreign policy interests’ as it appears in paragraph 2.43(1)(a) is not defined in the Migration Regulations. As such, the phrase is to be given its ordinary meaning.

I am advised by the Minister for Foreign Affairs that prior to the amendments made by the MAR 2006 (No. 1), paragraph 2.43(1)(a) enabled the Minister to determine that a visa holder’s presence in Australia ‘is, or would be, prejudicial to relations between Australia and a foreign country’. If the Minister made such a determination, the effect would be to require the Minister for Immigration and Multicultural Affairs to cancel the person’s visa. It was not clear that this formulation would allow the Minister for Foreign Affairs to make a determination affecting the visas of persons representing or acting on behalf of their governments. The amended formulation of the discretion addresses this shortcoming by allowing the Minister for Foreign Affairs to determine that an applicant’s presence ‘is, or would be, contrary to Australia’s foreign policy interests’.

The Minister’s discretion has been limited such that it no longer applies to certain (mainly onshore) protection, refugee and humanitarian visas to avoid potential conflicts with Australia’s international obligations. It should be noted that the discretion under paragraph 2.43(1 )(a) can be exercised only by the Minister for Foreign Affairs acting personally.

The Committee seeks an assurance regarding the rights of appeal that can be exercised by a person whose visa is cancelled as a result of the exercise of this discretion.

Section 338 of the Act provides the legislative basis under which decisions made pursuant to the Act are merits reviewable by the Migration Review Tribunal. Under section 338, a decision to cancel a visa under section 116 of the Act is reviewable by the Migration Review Tribunal if the visa holder is in Australia (but not in immigration clearance) at the time the decision to cancel the visa is made. In certain circumstances, the visa holder may also be able to seek judicial review of the decision.

The Committee also seeks my advice as to whether the term ‘weapons of mass destruction’ is defined anywhere for the purposes of this provision. I can advise that the term ‘proliferation of weapons of mass destruction’, which is used in subparagraph 2.43(1)(a)(ii), is defined in regulation 1.03 of the Migration Regulations. The definition states that ‘proliferation of weapons of mass destruction’ includes directly or indirectly assisting in the development, production, trafficking, acquisition or stockpiling of: (a) weapons that may be capable of causing mass destruction; or (b) missiles or other devices that may be capable of delivering such weapons.

I hope that this information is of assistance to the Committee.

Yours sincerely

Amanda Vanstone

Minister for Immigration and Multicultural Affairs

11 May 2006

Senator the Hon Amanda Vanstone

Minister for Immigration and Multicultural Affairs

Suite M1.40

Parliament House

CANBERRA ACT 2600

Dear Minister

Thank you for your letter of 9 May 2006 responding to the Committee’s concerns with the Migration Amendment Regulations 2006 (No. 1), Select Legislative Instrument 2006 No. 10.

The Committee has considered your response but considers the explanation of the term ‘contrary to Australia’s foreign policy interests’ unclear. You indicate that the phrase is to be given its ordinary meaning but it is the lack of a clear ordinary meaning that prompted the Committee’s inquiry. You advise that one example of the need for the new term is that it is intended to clarify the capacity to cancel the visa of a person who is representing or acting for their own government. It is not clear to the Committee why the original formulation did not cover this situation. More importantly, it does not appear that the new term is limited to that situation. Given these uncertainties, the Committee seeks your advice as to whether legal advice was received regarding this matter. If so, the Committee would appreciate receiving a copy of that advice.

The Committee would appreciate your advice on the above matter as soon as possible, but before 9 June 2006, to enable it to finalise its consideration of these Regulations. Correspondence should be directed to the Chairman, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

John Watson

Chairman

19 May 2006

Senator John Watson

Chairman

Senate Standing Committee on Regulations and Ordinances

Room SG49

Parliament House

Canberra ACT 2600

Dear Senator Watson

Thank you for your letter of 11 May 2006 regarding the Migration Amendment Regulations 2006 (No. 1), Select Legislative Instrument No. 10 of 2006 (‘the MAR 2006 (No. 1)’). The Committee has requested further clarification of the meaning of the term ‘contrary to Australia’s foreign policy interests’.

As the Committee’s concerns fall within the portfolio responsibilities of the Department of Foreign Affairs and Trade, I suggest that you refer your concerns directly to the Minister for Foreign Affairs and Trade.

No legal advice was sought by my department in respect of the relevant amendments, however they were made based on advice from the Department of Foreign Affairs and Trade.

I hope that this information is of assistance to the Committee.

Yours sincerely

Amanda Vanstone

Minister for Immigration and Multicultural Affairs

22 May 2006

The Hon Alexander Downer MP

Minister for Foreign Affairs

Suite M1.27

Parliament House

CANBERRA ACT 2600

Dear Minister

On 11 May 2006 the Committee sought advice from the Minister for Immigration and Multicultural Affairs on the meaning of the term ‘contrary to Australia’s foreign policy interests’ contained in the Migration Amendment Regulations 2006 (No. 1), Select Legislative Instrument 2006 No. 10.

Senator Vanstone advised on 19 May 2006 that this matter falls within your portfolio responsibility. The Committee therefore seeks your advice on the meaning of this term and encloses a copy of its original request to assist with this matter.

The Committee would appreciate your advice as soon as possible, but before 9 June 2006, to enable it to finalise its consideration of these Regulations. Correspondence should be directed to the Chairman, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

John Watson

Chairman

5 June 2006

Senator John Watson

Chairman

Senate Standing Committee on Regulations and Ordinances

Room SG-49

Parliament House

CANBERRA ACT 2600

Dear John

Thank you for your letter dated 22 May 2006 concerning the meaning of the term ‘contrary to Australia’s foreign policy interests’, contained in the Migration Amendment Regulations 2006 (No. l), Select Legislative Instrument No. 10.

As advised by the Minister for Immigration and Multicultural Affairs, Senator Vanstone, in her letter to the Committee of 19 May 2006, the term ‘contrary to Australia’s foreign policy interest’ is not defined in the Migration Regulations. As such, the term is to be given its ordinary meaning, with decisions on visa applications and/or visas made personally by the Minister for Foreign Affairs on a case-by-case basis.

I trust that this is of assistance to the Committee.

Yours sincerely

Alexander Downer

Minister for Foreign Affairs

15 June 2006

The Hon Alexander Downer MP

Minister for Foreign Affairs

Suite M1.27

Parliament House

CANBERRA ACT 2600

Dear Minister

Thank you for your letter of 5 June 2006 concerning the meaning of the term ‘contrary to Australia’s foreign policy interests’, contained in the Migration Amendment Regulations 2006 (No. 1), Select Legislative Instrument 2006 No. 10.

In your response you advise that the term ‘is to be given its ordinary meaning, with decisions on visa applications and/or visas made personally by the Minister for Foreign Affairs on a case-by-case basis’. This response does not further the Committee’s understanding of this term. Accordingly, the Committee would appreciate a briefing by departmental officials to resolve this matter.

The Committee would like to meet with departmental officials at 8.45 am on Thursday 22 June 2006. Could you please arrange for the department to contact the Committee Secretary, Mr James Warmenhoven (6277 3066) to finalise the details for this meeting.

As a precautionary measure, and in order to allow time for further discussion on this matter, the Committee has agreed to give a notice of motion to disallow these Regulations on Monday 19 June 2006.

Yours sincerely

John Watson

Chairman

19 June 2006

Senator John Watson

Chairman

Senate Standing Committee on Regulations and Ordinances

Room SG49

Parliament House

CANBERRA ACT 2600

Dear Senator Watson

Thank you for your letter dated 15 June 2006 concerning the meaning of the term ‘contrary to Australia’s foreign policy interests’, as contained in the Migration Amendment Regulations 2006 (No 1).

As requested, officials from the International Organisations and Legal Division of my Department will meet with the Committee to discuss the matter. I understand that, in liaison with officials from my Department, the Committee Secretariat has agreed to a later time of Thursday 17 August 2006.

I trust that the meeting will further the Committee’s understanding of the Regulations and will allay any concerns that the Committee may have on this matter.

Yours sincerely

Alexander Downer

Minister for Foreign Affairs

17 August 2006

The Hon Alexander Downer MP

Minister for Foreign Affairs

Suite M1.27

Parliament House

CANBERRA ACT 2600

Dear Minister

Thank you for making a number of officials from your Department available today to brief the Committee on the provisions of the Migration Amendment Regulations 2006 (No. 1), Select Legislative Instrument 2006 No. 10.

The briefing allayed many of the Committee’s concerns and the Committee intends to withdraw its disallowance notice at the next available opportunity. Issues such as the circumstances in which the power might be exercised, and the broad categories of persons to whom it might apply, became clearer as a more detailed explanation was provided by the Department. In particular, it became clearer that the scope of the power has become wider because the wording of the previous provision did not easily cover some situations in which the power had been exercised.

The Committee considers that it would be helpful if a more detailed explanation of the provision were to be included in a revised Explanatory Statement. While such an explanation need not canvass each particular situation in detail, it would be helpful if it noted that the power is intended to be exercised only in exceptional circumstances; that it only applies to temporary visa holders or applicants; that it is intended to apply in situations where there may be some inconsistency between a visa holder/applicant’s individual circumstances and their representational capacity; and that there is an opportunity for judicial review of the exercise of the power on the ground of jurisdictional error. The need for a briefing would have been obviated had the information provided at the briefing been included in the explanatory material.

The Committee would appreciate your advice on the above matter as soon as possible, but before 4 September 2006, to enable it to finalise its consideration of these Regulations. Correspondence should be directed to the Chairman, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

John Watson

Chairman

Senator Bob Brown to move on the next day of sitting:

That the Senate supports the Geneva Convention and opposes the failure to implement the convention regardless of by whom or where they may be breached.

Senator Milne to move on the next day of sitting:

That, on National Threatened Species Day, the Senate—

(a)

recognises that habitat destruction and fragmentation together with alien invasive species exacerbated by global warming are the main drivers of species extinction globally;

(b)

notes that:

(i)

since 1788, 52 plants and 55 animal species have gone to extinction in Australia including the Thylacine, which was last seen in Tasmania 70 years ago today, and

(ii)

in 2006 there are 1 243 plants, 91 mammals, 107 birds, 52 reptiles, 27 frogs, 39 fishes and 22 invertebrates listed as either critically endangered, endangered, vulnerable or conservation dependent in Australia;

(c)

expresses concern that only 21 per cent of nationally-listed threatened species have recovery plans, none of which any longer have implementation schedules or life of the project funding plans;

(d)

calls on the Government to recognise that protection of threatened species under the Environment Protection and Biodiversity Conservation Act 1999 has failed and does not fulfil Australia’s obligations to protect threatened species under the Convention on Biological Diversity; and

(e)

urges the Government to immediately develop and implement legislation that does protect threatened species.

Senator Nettle to move on the next day of sitting:

That the Senate—

(a)

congratulates the organisers of ‘A Taste of Slow - Australia 2006’, a ‘Slow Food’ festival culminating in the Abbotsford Convent Weekend in Victoria on the weekend of 9 and 10 September 2006 at the Collingwood Children’s Farm and Collingwood Farmers Market;

(b)

notes:

(i)

the fast growing international Slow Food Movement, which was founded not only as a response to the culture of fast food, but to encourage the use of local seasonal produce, to restore time-honoured methods of food production and preparation and to highlight the importance of sharing food at communal tables, and

(ii)

that the Slow Food Movement encourages environmentally sustainable production, the ethical treatment of animals and social justice;

(c)

recognises:

(i)

the importance of family meal times for the emotional, cultural and physical health of our communities, and

(ii)

the importance of promoting healthy food options in light of increasing community health concerns such as obesity, diabetes and related nutritionally linked disease;

(d)

calls on the Government to take action to promote healthy food options; and

(e)

notes, with concern, the pressures placed on family time due to the rapid rise in non-standard work hours.