BILLS DIGEST NO. 62, 2015–16              2 December 2015

Migration Legislation Amendment (Cessation of Visa Labels) Bill 2015

Elibritt Karlsen
Law and Bills Digest Section 

Date introduced: 11 November 2015

House:  House of Representatives

Portfolio: Immigration and Border Protection

Commencement:  Sections 1 to 3 upon Royal Assent; Schedule 1 the day after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website.

Purpose of the Bill

The purpose of the Migration Legislation Amendment (Cessation of Visa Labels) Bill 2015 (the Bill) is to repeal the Migration (Visa Evidence) Charge Act 2012[1] (the Charge Act) and amend the Migration Act 1958[2] (the Act) to repeal provisions relating to visa labels.

Background

The Charge Act and the Migration (Visa Evidence) Charge (Consequential Amendments) Act 2012[3] were enacted to enable the government to impose a charge for the production of visa evidence. In 2005 Australia ceased issuing or requiring visa labels for nearly all visa subclasses, but people can still request hard-copy evidence of their visa (normally evidenced by a visa label affixed to a person’s passport or travel document).[4] A request for a hard-copy visa label could be made for a range reasons such as ‘the perceived need for evidence for work entitlements, Medicare or Centrelink benefits, for proof to third parties or foreign embassies of the right to return to Australia, or simply as a souvenir’. [5] Hard-copy visa evidence might also be needed by offshore visa applicants to comply with local laws to exit or transit to another country (as discussed in greater detail below).

As at May 2012, one-third of all visas granted each year were evidenced and a total of 1.365 million visa labels were issued in 2011.[6] According to then Immigration Minister, Chris Bowen, issuing visa labels was the highest volume service undertaken at immigration client service counters in Australia and overseas.[7] It was hoped that imposing a charge of $70 (unless an exemption or waiver applied) would reduce the administrative burden non-electronic visa evidencing imposed on the Immigration Department, allow for greater cost-recovery in respect of immigration processing, generate additional revenue (in the order of $90 million over three years), and ultimately encourage people to travel without a visa label.[8]

On 1 July 2014, the Visa Evidence Charge (VEC) was increased from $70 to $150 and 12 visas were removed from the list of subclasses for which holders are exempt from payment of the VEC.[9] In its Explanatory Statement, the Department noted that online verification of visa status is ‘now widely used and accepted’.[10] While not providing a clear justification for the increase, the Department noted that ‘the increased charge will strike a balance between encouraging clients to use online verification, while remaining non-prohibitive for those that continue to want a label in the short term’.[11]

In 2012, the Department estimated that the demand for visa labels would decrease from 900,000 in 2012–13 to a maximum of 450,000 in 2015–16.[12] However, from commencement in November 2012 to June 2014, demand for visa labels decreased by approximately 90 per cent.[13] The increase in VEC in 2014 saw an even greater reduction in residual demand for visa labels and by August 2015, only 2,816 visa labels had been issued for the month, compared to 100,000 labels per month in 2011.[14]

The Migration Amendment (Visa Labels) Regulation 2015[15] (2015 Regulation) which repealed Division 2.4 of Part 2 (relating to evidence of visas) of the Migration Regulations 1994 removed the ability of a person to request and pay for a visa label and enabled the Department to cease issuing all visa labels from 1 September 2015.

Though the precise number of visa labels issued per month for the last financial year is not currently known, the Statement of Compatibility with Human Rights for the 2015 Regulation confirms that by August 2015 the Department had achieved its visa label reduction target, which was a 95 per cent reduction in demand when compared with 2011 data.[16]

The Department consulted external stakeholders on the measures contained in the 2015 Regulation. In its Explanatory Statement, the Department observed that the stakeholders who were consulted (including airlines, the Law Council of Australia, the Migration Institute of Australia, and other Commonwealth agencies) were in support of the Government’s label reduction strategy. It also notes that most of the foreign governments that were consulted accepted label-free travel to Australia.[17]

When a person receives their Australian visa, they are issued with a visa grant notification letter that explains the conditions of the visa, including period of validity and entry requirements. Visa holders (and registered third parties in Australia) can also utilise the Visa Entitlement Verification Online (VEVO), a secure and real-time electronic system, introduced in 2004 to demonstrate and confirm their visa details:

VEVO allows visa holders to check and send details about their visa status directly from the VEVO system to any email addresses. Visa holders can also retrieve their visa details from VEVO (existing web service) on a mobile electronic device and show this information to foreign officials. The department released the myVEVO mobile app in June 2015 making it even easier for visa holders to source their visa details using their smartphone.[18]

Airline employees use passenger’s passport details to electronically confirm that the passenger has the authority to travel to Australia prior to boarding the aircraft using the Advance Passenger Processing system. However, it is relevant to note that as visa details are linked to a passport, failure to update passport details with the Immigration Department (such as when a new passport is issued) would result in delays when travelling to Australia and the inability to access VEVO.[19] Of course, delays in travel could also occur as a result of any unexpected system failure in Australia.

It is also relevant to note that not all foreign countries formally accept label-free travel to Australia. However, according to the Immigration Department, ‘the cohort affected by this lack of agreement is very small. Border clearance processes are already in place to manage this cohort’.[20] The Department also expressed the view in 2012 that a growing number of countries are now allowing nationals to exit or transit their countries without a visa label.[21]

There are also those who do not have, or cannot obtain, a travel document recognised by the Australian Government, who will continue to require a visa label. As the Department explains:

Offshore refugee and humanitarian visa holders and those who do not have, or cannot obtain, a travel document recognised by the Australian Government are currently being issued with the Australian Migration Status (AMS) ImmiCard, an International Civil Aviation Organization (ICAO) compliant machine-readable official travel document (MRtd). A small number of visa holders in this cohort continue to be issued with a Document for Travel to Australia (DFTTA), and will continue to require a label until the staged roll out of the AMS ImmiCard is completed. These will be facilitated and not be dependent on a request by the client.[22]

The amendments contained in this Bill are the final step in the transition to ‘label-free’ visas, as the Charge Act and the empowering provisions in the Act relating to visa labels no longer have any practical effect.[23]

Committee consideration

Senate Standing Committee on Legal and Constitutional Affairs

The Bill has been referred to the Senate Standing Committee on Legal and Constitutional Affairs for inquiry and report by 25 February 2016. Details of the inquiry are at the inquiry webpage.[24] At time of writing, no submissions had been published by the Committee.

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills had no comment on the Bill.[25]

Policy position of non-government parties/independents

The policy position of non-government parties/independents is not currently publicly known. However, the Opposition is likely to be supportive of the measures contained in the Bill because it introduced the Migration (Visa Evidence) Charge Bill 2012 to change client and stakeholder behaviour to recognise the validity of electronic confirmation of a person’s visa and ultimately reduce the administrative burden non-electronic visa evidencing imposes on the Immigration Department.[26] It should also be noted that no motions of disallowance were moved against the Migration Amendment (Visa Labels) Regulation 2015, which allowed Australia to cease issuing all visa labels from 1 September 2015.

Position of major interest groups

The Immigration Department claims that it has undertaken ‘extensive stakeholder engagement over the last three years regarding the global rollout of visa label free arrangements and the introduction of the VEC. The initiative is generally well understood and accepted by stakeholders, including foreign governments’.[27]

Financial implications

The Explanatory Memorandum notes that the financial impact of the Bill is low with any costs to be met from within existing resources of the Department of Immigration and Border Protection.[28] Further, the Minister claims:

From a regulatory reform perspective, the changes will result in savings for businesses and individuals as a consequence of not having to pay for visa labels. It is estimated that the total regulatory saving per year following the cessation of visa labels is $2.89 million. [29]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill does not engage any of the applicable rights and freedoms and is thus compatible.[30]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights considers that the Bill does not require additional comment because it does not raise human rights concerns.[31]

Key issues and provisions

Item 1 repeals the Charge Act in its entirety. Following commencement of the Migration Amendment (Visa Labels) Regulation 2015 on 1 September 2015, it is no longer possible to request and pay a charge to have a visa label issued, thus the provisions relating to visa labels have no practical effect. This is discussed in greater detail above under the heading ‘Background’.

Items 2 and 5 repeal provisions inserted into the Act by the Migration (Visa Evidence) Charge (Consequential Amendments) Act 2012. Item 2 repeals the definition of the terms ‘visa evidence charge’ and ‘visa evidence charge limit’ from subsection 5(1) of the Act (interpretation). Item 5 repeals Subdivision AE of Division 3 of Part 2 of the Act (Evidence of visas). This subdivision contains four sections: 70 (Request for evidence of a visa); 71 (Liability to pay visa evidence charge); 71A (Officer must give evidence of a visa); 71B (Regulations about visa evidence charge).

Items 3, 4 and 6 repeal references to Subdivision AE of Division 3 of Part 2 of the Act in four provisions in the Act, which is consequential to the repeal of that Subdivision by item 5 (discussed above).

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.

© Commonwealth of Australia

Creative Commons

With the exception of the Commonwealth Coat of Arms, and to the extent that copyright subsists in a third party, this publication, its logo and front page design are licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia licence.

In essence, you are free to copy and communicate this work in its current form for all non-commercial purposes, as long as you attribute the work to the author and abide by the other licence terms. The work cannot be adapted or modified in any way. Content from this publication should be attributed in the following way: Author(s), Title of publication, Series Name and No, Publisher, Date.

To the extent that copyright subsists in third party quotes it remains with the original owner and permission may be required to reuse the material.

Inquiries regarding the licence and any use of the publication are welcome to webmanager@aph.gov.au.

Disclaimer: Bills Digests are prepared to support the work of the Australian Parliament. They are produced under time and resource constraints and aim to be available in time for debate in the Chambers. The views expressed in Bills Digests do not reflect an official position of the Australian Parliamentary Library, nor do they constitute professional legal opinion. Bills Digests reflect the relevant legislation as introduced and do not canvass subsequent amendments or developments. Other sources should be consulted to determine the official status of the Bill.

Any concerns or complaints should be directed to the Parliamentary Librarian. Parliamentary Library staff are available to discuss the contents of publications with Senators and Members and their staff. To access this service, clients may contact the author or the Library’s Central Entry Point for referral.

[1].              Migration (Visa Evidence) Charge Act 2012, accessed 23 November 2015.

[2].              Migration Act 1958, accessed 23 November 2015.

[3].              Migration (Visa Evidence) Charge (Consequential Amendments) Act 2012, accessed 23 November 2015.

[4].              Joint Standing Committee on Migration, Inquiry into Migration (Visa Evidence) Charge Bill 2012 and the Migration (Visa Evidence) Charge (Consequential Amendments) Bill 2012, House of Representatives, Canberra, 18 June 2012, p. 11, accessed 24 November 2015.

[5].              Ibid., p. 10.

[6].              C Bowen, ‘Second reading speech: Migration (Visa Evidence) Charge Bill 2012’, House of Representatives, Debates, 9 May 2012, p. 4241, accessed 24 November 2015.

[7].              Ibid.

[8].              Explanatory Memorandum, Migration (Visa Evidence) Charge Bill 2012, p. 1; Additional Explanatory Memorandum, Migration (Visa Evidence) Charge Bill 2012, p. 3, both accessed 24 November 2015. Note also that the Joint Standing Committee on Migration recommended that both Bills be passed without amendment: Joint Standing Committee on Migration, Inquiry into Migration (Visa Evidence) Charge Bill 2012 and the Migration (Visa Evidence) Charge (Consequential Amendments) Bill 2012, op. cit., p. viii.

[9].              The 12 visas included Subclass 050 (Bridging (General)) visa; Subclass 051 (Bridging (Protection Visa Applicant)) visa; Subclass 060 (Bridging F) visa; Subclass 070 (Bridging (Removal Pending)) visa; Subclass 416 (Special Program) visa for which the holder satisfied the requirements of paragraph 416.222(d) of Schedule 2; Subclass 574 (Postgraduate Research Sector) visa; Subclass 576 (Foreign Affairs or Defence Sector) visa, Subclass 773 (Border) visa; Subclass 851 (Resolution of Status) visa; Subclass 852 (Witness Protection (Trafficking) (Permanent)) visa; Subclass 866 (Protection) visa; criminal justice stay visa; and a student visa for which the amount of the visa applicant charge was nil on the basis that the requirement in paragraph 1222(2)(a)(i), (iii), (iv), (v) or (vi) of Schedule 1 to the Migration Regulations 1994 was satisfied: Statement of Compatibility with Human Rights, Migration Legislation Amendment (2014 Measures No. 1) Regulation 2014, pp. 1–2 (Attachment B), accessed 24 November 2015.

[10].              Explanatory Statement, Migration Legislation Amendment (2014 Measures No. 1) Regulation 2014, p. 1, accessed 24 November 2015.

[11].              Ibid.

[12].              Additional Explanatory Memorandum, Migration (Visa Evidence) Charge Bill 2012, p. 3, op. cit.

[13].              Statement of Compatibility with Human Rights, Migration Legislation Amendment (2014 Measures No. 1) Regulation 2014, op. cit., p. 1.

[14].              A Robb (Minister for Trade and Investment), ‘Second reading speech: Migration Legislation Amendment (Cessation of Visa Labels) Bill 2015’, House of Representatives, Debates, (proof), 11 November 2015, p. 4, accessed 24 November 2015.

[15].              Migration Amendment (Visa Labels) Regulation 2015, accessed 23 November 2015.

[16].              Statement of Compatibility with Human Rights, Migration Amendment (Visa Labels) Regulation 2015, p. 3 (Attachment A), accessed 24 November 2015.

[17].              Explanatory Statement, Migration Amendment (Visa Labels) Regulation 2015, p. 2, accessed 23 November 2015.

[18].              Statement of Compatibility with Human Rights, Migration Amendment (Visa Labels) Regulation 2015, op. cit., p. 5.

[19].              Department of Immigration and Border Protection (DIBP), ‘Electronic visa record’, DIBP website, accessed 24 November 2015.

[20].              Statement of Compatibility with Human Rights, Migration Amendment (Visa Labels) Regulation 2015, op. cit., pp. 4–5.

[21].              Joint Standing Committee on Migration, Inquiry into Migration (Visa Evidence) Charge Bill 2012 and the Migration (Visa Evidence) Charge (Consequential Amendments) Bill 2012, op. cit., p. 14.

[22].              Statement of Compatibility with Human Rights, Migration Legislation Amendment (Cessation of Visa Labels) Bill 2015, p. 5.

[23].              Ibid.

[24].              Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Provisions of the Migration Legislation Amendment (Cessation of Visa Labels) Bill 2015, The Senate, Canberra, 2015, accessed 23 November 2015.

[25].              Senate Standing Committee for the Scrutiny of Bills, Alert digest, 13, 2015, 25 November 2015, accessed 1 December 2015.

[26].              C Bowen, ‘Second reading speech: Migration (Visa Evidence) Charge Bill 2012’, House of Representatives, op. cit., accessed 24 November 2015.

[27].              Statement of Compatibility with Human Rights, Migration Amendment (Visa Labels) Regulation 2015, op. cit., p. 3.

[28].              Explanatory Memorandum, Migration Legislation Amendment (Cessation of Visa Labels) Bill 2015, p. 1.

[29].              A Robb (Minister for Trade and Investment), ‘Second reading speech: Migration Legislation Amendment (Cessation of Visa Labels) Bill 2015’, op. cit., p. 4.

[30].              The Statement of Compatibility with Human Rights can be found at page 5 of the Explanatory Memorandum to the Bill.

[31].              Parliamentary Joint Committee on Human Rights, Thirty-first report of the 44th Parliament, 24 November 2015, p. 1, accessed 24 November 2015.