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2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MIGRATION AMENDMENT (TABLING NOTICE OF CERTAIN CHARACTER
DECISIONS) BILL 2021
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Immigration, Citizenship, Migrant Services
and Multicultural Affairs, the Hon Alex Hawke MP)
MIGRATION AMENDMENT (TABLING NOTICE OF CERTAIN CHARACTER
DECISIONS) BILL 2021
OUTLINE
The Migration Amendment (Tabling Notice of Certain Character Decisions) Bill 2021 (the
Bill) amends the Migration Act 1958 (the Migration Act) to provide that if the Minister
makes certain character decisions under current subsection 501(3) of the Migration Act in
relation to a person, then the Minister must cause notice of the making of the decision to be
laid before each House of the Parliament within 15 sitting days of that House after the day the
decision was made.
Decisions made under current subsection 501(3) of the Migration Act are those decisions to
refuse to grant a visa or to cancel a visa on character grounds that the Minister makes
personally, without notice to the applicant or visa holder, where the Minister considers the
refusal or cancellation to be in the national interest. Current section 501C of the Migration
Act provides a power for the Minister to revoke such a decision, including where a person
has made representations after being advised of the decision.
Specifically, the provisions of the Bill:
insert a new subsection 501(4A) to provide that if the Minister makes a decision under
current subsection 501(3) in relation to a person, the Minister must cause notice of the
making of the decision to be laid before each House of the Parliament within 15
sitting days of that House after the day the decision was made;
insert a new paragraph 501(4B)(a) to provide that new subsection 501(4A) does not
apply to a decision made on the basis the Minister reasonably suspects the person
does not pass the character test because of the operation of current paragraph
501(6)(a), (e) or (g);
insert a new paragraph 501(4B)(b) to provide that new subsection 501(4A) does not
apply if the person was the subject of an adverse security assessment, or a qualified
security assessment, under the Australian Intelligence Organisation Act 1979 (the
ASIO Act) when the decision was made;
provide for the application of the amendment in certain circumstances.
FINANCIAL IMPACT STATEMENT
These amendments will have a low financial impact.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
A Statement of Compatibility with Human Rights has been completed in relation to the
amendments in this Bill and assesses that the amendments are compatible with Australia's
human rights obligations. A copy of the Statement of Compatibility with Human Rights is at
Attachment A.
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MIGRATION AMENDMENT (TABLING NOTICE OF CERTAIN CHARACTER
DECISIONS) BILL 2021
NOTES ON INDIVIDUAL CLAUSES
Clause 1 Short title
1. Clause 1 provides that the short title of the Bill, once enacted, will be the Migration
Amendment (Tabling Notice of Certain Character Decisions) Act 2021.
Clause 2 Commencement
2. Clause 2 of the Bill sets out the times at which the various provisions of the Act
commence.
3. Subclause 2(1) of the Bill provides that each provision of the Act specified in column 1 of
the table commences, or is taken to have commenced, in accordance with column 2 of the
table. Any other statement in column 2 has effect according to its terms.
4. Table item 1 provides that the whole of this Act will commence on the day after the Act
receives the Royal Assent.
5. The note in subclause 2(1) makes it clear that the table relates only to the provisions of
the Act as originally enacted. The table will not be amended to deal with any later
amendments to the Act.
6. Subclause 2(2) of the Bill provides that any information in column 3 of the table is not
part of the Act. Information may be inserted in this column, or information in it may be
edited, in any published version of the Act. There is currently no information in column 3 of
the table.
Clause 3 Schedules
7. This clause provides that legislation that is specified in a Schedule to this Act is amended
or repealed as set out in the applicable items in the Schedule concerned. In addition, any
other item in a Schedule to this Act has effect according to its terms.
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SCHEDULE 1 - Amendments
Migration Act 1958
Item 1 After subsection 501(4)
8. This item inserts new subsections 501(4A) and (4B) after current subsection 501(4) of the
Migration Act.
9. New subsection 501(4A) provides that, if the Minister makes a decision under current
subsection 501(3) in relation to a person, the Minister must cause notice of the making of the
decision to be laid before each House of the Parliament within 15 sitting days of that House
after the day the decision was made.
10. New paragraph 501(4B)(a) provides that new subsection 501(4A) does not apply if the
decision made by the Minister under current subsection 501(3) was made on the basis that the
Minister reasonably suspects the person does not pass the character test because of the
operation of:
paragraph 501(6)(a) (substantial criminal record);
paragraph 501(6)(e) (sexually based offences involving a child); or
paragraph 501(6)(g) (assessed by the Australian Security Intelligence Organisation
(ASIO) as directly or indirectly a risk to security).
11. New paragraph 501(4B)(b) provides that new subsection 501(4A) does not apply if the
person was the subject of an adverse security assessment, or a qualified security assessment,
under the ASIO Act when the decision was made.
12. Current subsection 501(3) provides that the Minister, acting personally, may refuse to
grant a visa to a person, or cancel a visa that has been granted to a person if the Minister
reasonably suspects that the person does not pass the character test (as defined in current
subsection 501(6)). Under current paragraph 501(3)(d), the Minister must also be satisfied
that it is in the national interest to refuse to grant or cancel the visa.
13. Current subsection 501(5) provides that the rules of natural justice and the code of
procedure (set out in Subdivision AB of Division 3 of Part 2) do not apply where the
Minister, acting personally, makes a decision under current subsection 501(3).
14. The purpose of new subsections 501(4A) and (4B) is to provide greater transparency
before Parliament of the specified instances in which the Minister uses the power in current
section 501(3) of the Migration Act to refuse or cancel a visa on certain character grounds.
15. Similar arrangements are provided for in current subsection 501C(8), where, if the
Minister makes a decision (the subsequent decision) to revoke, or not to revoke, the original
decision made under current subsection 501(3), the Minister must cause notice of the making
of the subsequent decision to be laid before each House of the Parliament within 15 sitting
days of that House after the day on which the subsequent decision was made.
16. Additionally, under current subsection 501C(9), the Minister must also cause notice of the
fact that a person was invited to make representations but did not do so in accordance with
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the invitation to be laid before each House of Parliament within 15 sitting days of that House
after the last day on which the representations could have been made.
Item 2 Application of amendments
17. This item sets out the application provision that relates to item 1 of Schedule 1 to the Bill.
18. This item provides that the amendments made by this Schedule apply in relation to
decisions made after this Schedule commences.
19. This application provision ensures that new subsections 501(4A) and (4B), as inserted by
Item 1 of this Schedule, will apply to a decision the Minister makes under current
subsection 501(3) after the commencement of the amendments made by this Schedule. New
subsections 501(4A) and (4B) will not apply to a decision by the Minister under current
subsection 501(3), where that decision was made before the amendments commence.
20. Schedule 1 to the Bill commences the day after the Act receives the Royal Assent.
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Attachment A
Statement of Compatibility with Human Rights
Prepared in accordance with part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration Amendment (Tabling Notice of Certain Character Decisions) Bill 2021
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The Migration Amendment (Tabling Notice of Certain Character Decisions) Bill 2021 (the
Bill) amends the Migration Act 1958 (the Migration Act) to provide that if the Minister
makes certain character decisions under current subsection 501(3) of the Migration Act in
relation to a person, then the Minister must cause notice of the making of the decision to be
laid before each House of the Parliament within 15 sitting days of that House after the day the
decision was made.
Decisions made under subsection 501(3) of the Migration Act are those decisions to refuse to
grant a visa or to cancel a visa on character grounds that the Minister makes personally,
without notice to the applicant or visa holder, where the Minister considers the refusal or
cancellation to be in the national interest. Section 501C of the Migration Act provides a
power for the Minister to revoke such a decision, including where a person has made
representations after being advised of the decision.
Specifically, the provisions of the Bill:
insert a new subsection 501(4A) to provide that if the Minister makes a decision under
current subsection 501(3) in relation to a person, the Minister must cause notice of the
making of the decision to be laid before each House of the Parliament within 15
sitting days of that House after the day the decision was made;
insert a new paragraph 501(4B)(a) to provide that new subsection 501(4A) does not
apply to a decision made on the basis the Minister reasonably suspects the person
does not pass the character test because of the operation of current paragraph
501(6)(a), (e) or (g);
insert a new paragraph 501(4B)(b) to provide that new subsection 501(4A) does not
apply if the person was the subject of an adverse security assessment, or a qualified
security assessment, under the Australian Intelligence Organisation Act 1979 when
the decision was made.
Human rights implications
The Bill provides greater transparency before Parliament of the instances in which the
Minister uses the power in current section 501(3) of the Migration Act to refuse or cancel a
visa, but does not change the way the provision operates and does not of itself engage human
rights. Usual tabling practices will be followed to ensure that personal information is not
published, consistently with rights relating to privacy.
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Conclusion
This Bill is compatible with human rights because it is consistent with Australia's human
rights obligations.
The Hon Alex Hawke MP, Minister for Immigration, Citizenship, Migrant Services and
Multicultural Affairs