House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Immigration and Border Protection, the Hon. Peter Dutton MP)

Notes on Individual Clauses

Preliminary

Clause 1 - Short title

1. The short title by which this Act may be cited is the Migration and Other Legislation Amendment (Enhanced Integrity) Act 2017.

Clause 2 - Commencement

2. Subclause 2(1) sets out when the provisions of the Act commence.

3. The whole of the Act will commence on a single day or days to be fixed by Proclamation, unless the provisions do not commence within 6 months of Royal Assent, in which case they commence on the day after the end of that 6 month period.

4. Subclause 2(2) provides that any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

Clause 3 - Schedules

5. This clause provides that each Act specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned.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.

Schedule 1 - Amendments

Part 1 - Public disclosure of sanctions

Migration Act 1958

Item 1 At the end of section 140K

6. This item inserts new subsections 140K(4), (5), (6) and (7) at the end of current section 140K. Current section 140K sets out actions that may be taken in relation to approved and former approved sponsors.

7. New subsection 140K(4) requires the Minister to publish information, including personal information, if an action is taken under current section 140K in relation to an approved sponsor or former approved sponsor who fails to satisfy an obligation imposed on them. The requirement to publish will be subject to any exceptions prescribed in regulations for the purpose of new subsection 140K(7).

8. The purpose of publishing information about actions taken in relation to approved or former approved sponsors is to deter businesses from breaching their sponsorship obligations, and to allow Australians and overseas workers to inform themselves about a sponsor's breaches. It will also increase public awareness of the Department's sponsor monitoring activities.

9. New subsection 140K(5) makes it clear that the Minister is not required to observe any requirements of the natural justice hearing rule in publishing information under new subsection 140K(4). This is because the information will only be published under new subsection 140K(4) once a decision has been made to take action under current section 140K. New subsection 140K(5) does not limit the Minister's procedural fairness obligations in relation to the decision to take action.

10. New subsection 140K(6) provides protection from civil proceedings where information is published under new subsection 140K(4) in good faith.

Item 2 At the end of section 140ZH

11. This item inserts a note at the end of current section 140ZH. The note makes it clear that the requirement to publish information, including personal information, under new subsection 140K(4) is in addition to the Minister's powers to disclose personal information under current section 140ZH.

Item 3 Application of amendments

12. This item provides that the amendments made by item 1 of this Schedule apply in relation to actions taken under section 140K on or after 18 March 2015. This reflects the date of the Government's response to the report Robust New Foundations - A Streamlined, Transparent and Responsive System for the 457 Programme (the report).

13. The Government's response supported recommendation 21.2 of the report that the Department disclose greater information on its sanction actions, and communicate this directly to all sponsors and the migration advice profession, as well as placing information on the website. This amendment will give effect to that recommendation.

Part 2 - Review of decisions relating to certain visas

Migration Act 1958

Item 4 Paragraph 338(2)(d)

14. Current section 338 defines when a decision is a Part 5-reviewable decision by the Migration and Refugee Division of the Administrative Appeals Tribunal (the MRD). Current paragraph 338(2)(d) provides that for prescribed temporary visa subclasses which require the applicant to be sponsored by an approved sponsor, a decision to refuse to grant the visa will be a Part 5-reviewable decision if, at the time of the application for review, either:

•

the applicant is sponsored by an approved sponsor; or

•

an application for review of a decision not to approve the sponsor has been made and is pending.

15. The intention of current paragraph 338(2)(d) was to prevent abuse of the merits review process by preventing refused visa applicants, who had no sponsor, and therefore no ability to meet the criteria for grant of the visa, from seeking to extend their stay in Australia by lodging a review application.

16. This paragraph was not, however, amended in 2008 at the time of the Migration Legislation Amendment (Worker Protection Act) 2008, which replaced the former sponsorship regime with the current Division 3A of Part 2 of the Act from 14 September 2009 onwards. As a result, this paragraph still only refers to 'sponsorship' and is not consistent with the current criteria for the grant of certain visas, which only requires the existence of a current approved nomination but do not require the approved sponsorship to still be in effect.

17. Due to this inconsistency, a number of court decisions handed down over recent years have interpreted current paragraph 338(2)(d) in an attempt to try and adapt it to these new arrangements. This has led to confusion and uncertainty for both clients and the Department, which this item seeks to address.

18. In particular, the Court in Kandel v the Minister for Immigration and Border Protection [2015] FCCA 2013 (Kandel) interpreted 'sponsored by an approved sponsor' as including situations where the applicant has been identified in a nomination that has yet to be decided at the time of application for review. This interpretation is inconsistent with the policy intention of paragraph 338(2)(d), as it encourages the sponsor to keep lodging repeat applications for approval of a nomination, rather than seeking review of a nomination refusal. It has also resulted in a confusing situation where an applicant has no entitlement to seek merits review of a decision to review their visa at the time the visa decision is made, but may subsequently obtain review rights (for example, because a repeat nomination application is lodged).

19. To address the decision in Kandel, this item repeals current paragraph 338(2)(d) and substitutes it with new paragraph 338(2)(d). New paragraph 338(2)(d) applies to visas requiring sponsorship and nomination, and visas only requiring sponsorship, that are prescribed for this paragraph.

20. This will clarify the circumstances in which merits review of decisions relating to certain visas is available in line with the intended operation of paragraph 338(2)(d). New paragraph 338(2)(d) will also ensure that there is certainty regarding a visa applicant's entitlement to apply for merits review when the decision to refuse is made, which will reduce the risk of a notification given under subsection 66(2) being defective.

21. New subparagraphs 338(2)(d)(i) and (iii) apply to applicants that require a sponsorship and a nomination. A decision to refuse to grant a non-citizen such a visa will be a Part 5-reviewable decision if, at the time the decision to refuse to grant the visa is made:

•

the applicant is identified in a current approved nomination (subparagraph 338(2)(d)(i)); or

•

an application has been made to the MRD for review of a decision not to approve the nomination identifying the visa applicant, and a decision on the review is pending (subparagraph 338(2)(d)(iii)).

22. New subparagraph 338(2)(d)(ii) applies to applicants that require either a sponsorship and a nomination or applicants that do not require a nomination. A decision to refuse to grant a non-citizen such a visa will be a Part 5-reviewable decision if, at the time the decision to refuse to grant the visa is made, an application has been made to the MRD for review of a decision not to approve the visa applicant's sponsor, and a decision on the review is pending.

23. New subparagraph 338(2)(d)(iv) only applies to applicants for prescribed visas that do not require a nomination. For these applicants, a decision to refuse to grant a visa will be a Part 5-reviewable decision if the applicant is sponsored by an approved sponsor at the time the decision to refuse to grant the visa is made. This ensures that visa applicants who are not required to have an approved nomination will not be negatively impacted by new subparagraphs 338(2)(d)(i) and (iii), by maintaining their right to seek merits review in circumstances where the visa is refused on grounds other than not having an approved sponsor. The exclusion of applicants under subparagraph 338(2)(d)(iv) that are required to be identified in an approved nomination makes it clear that those applicants will only have access to merits review if they meet the criteria set out in subparagraphs 338(2)(d)(i) to (iii). This is consistent with the original intended operation of paragraph 338(2)(d).

Item 5 Application of amendments

24. This item provides that the amendments made by item 4 of this Schedule apply in relation to decisions to refuse to grant a visa of a kind prescribed for the purpose of new paragraph 338(2)(d) after item 4 commences. The amendments will not affect the jurisdiction of the MRD in relation to applications made after commencement for review of a decision made before commencement of this item.

Part 3 - Tax file numbers

Income Tax Assessment Act 1936

Item 6 At the end of section 202

25. Section 202 outlines the objects of Part VA of the Income Tax Assessment Act 1936, which is the establishment of a system of tax file numbers. This item inserts new subsection 202(t) to add the facilitation of the administration of the Migration Act as an object of Part VA.

26. In conjunction with item 10 of this Schedule, new paragraph 202(t) allows tax file numbers to be requested, recorded, used and disclosed to the extent authorised by the Migration Act.

Migration Act 1958

Item 7 Subsection 5(1)

27. This item inserts a signpost definition of tax file number which refers to subsection 995-1(1) of the Income Tax Assessment Act 1997.

Item 8 After section 506A

28. This item inserts new section 506B, which permits tax file numbers to be requested, provided, used, recorded and disclosed. This will give effect to the Government-supported recommendation 18.2 of the 457 Integrity Review.

29. New subsection 506B(1) allows the Secretary of the Department of Immigration and Border Protection (the Secretary) to request the tax file number of a person who is an applicant for, or holder or former holder of, a visa of a kind to be prescribed by the regulations. A regulation made for the purposes of new subsection 506B(1) will be subject to disallowance by either House of Parliament, ensuring that there will be Parliamentary scrutiny over the kinds of visas that are prescribed for the purposes of this subsection.

30. Tax file numbers will assist the Department of Immigration and Border Protection to undertake more streamlined, targeted and effective compliance activity. For example, in the context of the employer sponsored skilled migration programme, information obtained from the Australian Taxation Office (ATO) will assist the Department to identify skilled visa sponsors who breach their obligations, including by underpaying visa holders, as well as visa holders who work for more than one employer in breach of their visa conditions.

31. Access to tax file numbers will enhance the Department's ability to match and access data held by the ATO. This improved data matching will improve the Department's ability to undertake research and trend analysis, which will provide an evidence base for the Department in developing visa policy.

32. The amendments will also allow the Department to store tax file numbers when they are provided during the visa application process. This will reduce the administrative burden on the Department as it will not need to redact these tax file numbers.

33. New subsection 506B(2) lists the persons to whom a request under new subsection 506B(1) can be made.

34. New paragraph 506B(2)(a) allows a request to be made to a visa applicant, visa holder or former holder to provide their own tax file number. Consistent with subsection 7(3) of the Privacy (Tax File Number) Rule 2015 issued under section 17 of the Privacy Act 1988, it is not the intention to require a visa applicant, visa holder or former holder to provide their tax file number.

35. New paragraphs 506B(2)(b), (c), (d) and (e) allow a request to be made to an approved or former approved sponsor, or a person who nominated the visa applicant, visa holder or former holder in an approved nomination (whether or not that nomination has ceased under the regulations) for the tax file number of the visa applicant, visa holder or former holder. This does not by itself require the visa applicant, visa holder or former holder to provide their tax file number to the sponsor or nominator.

36. New subsection 506B(3) ensures that a person to whom a request is given under new subsection 506B(1) can lawfully disclose the requested tax file number to the Department if they lawfully hold the tax file number. It is not the intention that a person who receives a request under new subsection 506B(1) be required to obtain the requested tax file number if they do not hold it. New subsection 506B(3) does not by itself authorise the request recipient (such as the sponsor or nominator) to request, record, use or disclose a tax file number. For example, if the sponsor (as an employer) lawfully held a visa holder's tax file number, and the Department requested the sponsor to provide the tax file number, the sponsor would be able to provide the visa holder's tax file number to the Department.

37. New subsection 506B(4) allows the Secretary to provide a tax file number to the Commissioner of Taxation (the Commissioner) for verification purposes. Upon receipt of a tax file number, new subsection 506B(5) permits the Commissioner to confirm the tax file number is correct, or provide the relevant person's correct tax file number, or inform the Secretary that the relevant person does not have a tax file number. This verification process will ensure the integrity of tax file numbers provided to the Department, as well as any subsequent information obtained through data matching.

38. New subsection 506B(6) will allow the Secretary to obtain directly from the Commissioner the tax file numbers of persons the Secretary advises the Commissioner are relevant persons. This is in addition to the power for the Secretary to request a tax file number under new subsection 506B(1) and verification of a tax file number under new subsection 506B(5). This is intended to be the primary means through which the Department will collect tax file numbers. This approach minimises the regulatory burden on visa applicants, visa holders, former visa holders and sponsors.

39. New subsection 506B(7) ensures that a tax file number obtained under section 506B can only be used, recorded or disclosed for a purpose prescribed by the regulations. A regulation made for the purposes of new subsection 506B(7) will be subject to disallowance by either House of Parliament, meaning that there will be Parliamentary scrutiny over the kinds of purposes that are prescribed under this subsection.

Taxation Administration Act 1953

Item 9 Paragraphs 8WA(1AA)(b) and 8WB(1A)(a) and (b)

40. This item inserts a reference to paragraph 202(t) of the Income Tax Assessment Act in paragraphs 8WA(1AA)(b) and 8WB(1A)(a) and (b). This ensures that a person does not commit an offence under subsection 8WA(1) or subsection 8WB(1) of the Taxation Administration Act by requesting, recording, using or disclosing a tax file number as authorised by the Migration Act.

Item 10 Application of amendments

41. This item provides that the amendments made by this Part apply in relation to any request or record that is made or maintained, and any use, disclosure or communication of a tax file number that occurs after commencement of this item.

Part 4 - Technical Amendments

Migration Act 1958

Item 11 Subparagraph 140K(1)(a)(iv)

42. Current subparagraph 140K(1)(a)(iv) allows the Minister for Immigration and Border Protection (the Minister) to accept an undertaking under the Regulatory Powers Act.

43. This item is a technical amendment to address the incorrect reference in current subparagraph 140K(1)(a)(iv) to section 119 of the Regulatory Powers Act. Amended subparagraph 140K(1)(a)(iv) refers to section 114 of the Regulatory Powers Act, which provides for the acceptance of undertakings.

Item 12 Subparagraph 140K(1)(a)(v)

44. Current subparagraph 140K(1)(a)(v) allows the Minister to apply for an order under the Regulatory Powers Act if the Minister considers that an undertaking has been breached.

45. This item is a technical amendment to address the incorrect reference in current subparagraph 140K(1)(a)(v) to section 120 of the Regulatory Powers Act. Amended subparagraph 140K(1)(a)(v) refers to section 115 of the Regulatory Powers Act, which provides for enforcement of undertakings.

Item 13 Subparagraph 140K(2)(a)(iii)

46. This item is a technical amendment to address the incorrect reference in current subparagraph 140K(2)(a)(iii) to section 119 of the Regulatory Powers Act. Consistent with item 11, amended subparagraph 140K(2)(a)(iii) refers to section 114 of the Regulatory Powers Act.

Item 14 Subparagraph 140K(2)(a)(iv)

47. This item is a technical amendment to address the incorrect reference in current subparagraph 140K(2)(a)(iv) to section 120 of the Regulatory Powers Act. Consistent with item 12, amended subparagraph 140K(2)(a)(iv) refers to section 115 of the Regulatory Powers Act.