Federal Litigation and Dispute Resolution

Migration and Other Legislation Amendment (Enhanced Integrity) Bill 2017

The Law Council is grateful for the opportunity to provide feedback on the Migration and Other Legislation Amendment (Enhanced Integrity) Bill 2017 (Bill).

The Bill has been introduced to strengthen integrity measures and compliance with obligations under Australia’s skilled migration programmes. The Law Council generally supports strengthening the integrity of Australia’s skilled migration programmes. However, as has been noted by the Law Institute of Victoria, any amendments to the programme should adhere to and uphold the rule of law. To that end, the Law Council has identified some oversights in the Bill which should be rectified to ensure due process and fairness, and offers the following recommendations:

(a) the Bill should be amended to make clear expressly that publication of information about a sponsor being sanctioned will not occur until after any merits or judicial review options have been exhausted, consistent with representations made by the Department of Immigration and Border Protection (DIPB);

(b) the Minister should justify why the immunity from civil liability conferred by proposed subsection 140K(6) is appropriate and necessary, and this justification should be included in the Explanatory Memorandum;

(c) the proposed amendments to section 140K, which permit the publication of sanction decision information, should only apply to sanction decisions made on or after the Bill, if passed, comes into force;

(d) the DIBP should be required to:

(i) explain to the Senate Standing Committee on Legal and Constitutional Affairs how the integrity of data obtained using TFNs as part of DIBP’s monitoring and compliance activities will be assured; and

(ii) publish guidelines, addressing how it intends to protect the privacy and integrity of tax file numbers (TFNs) and the information obtained using TFNs, which are consistent with the Australian Privacy Principles;

(e) the DIBP should provide sponsors with the opportunity to comment on any raw data used by the DIBP to inform a sanction decision; and

(f) proposed new subsection 338(2)(d) should be removed from the draft Bill, or significantly redrafted, as it is confusing and may inadvertently create unfair outcomes. In addition, non-legislative alternatives to amending the existing section should be considered.

You can read the full submission below.

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