Migration Amendment (Skilling Australians Fund) Act 2018

Overview

The Migration Amendment (Skilling Australians Fund) Act 2018, enacted on 22 May 2018 by the Parliament of Australia, was introduced to make amendments to the Migration (Skilling Australians Fund) Charges Act 2018, particularly addressing the imposition of nomination training contribution charges. This Act modifies the Migration Act 1958 by inserting new provisions related to the Skilling Australians Fund and modifying the conditions under which these charges apply. The objective of this Act is to ensure that the Skilling Australians Fund is appropriately supported through the payment of nomination training contribution charges by relevant parties, while also providing clarity and adjustments to the legislative framework governing these charges. The Act also mandates an independent review of the operation of the amendments it introduces, to be completed within six months of the review's commencement, which must start within eighteen months of the Act receiving Royal Assent. The findings of this review are to be reported to both Houses of the Parliament within fifteen sitting days of the report being given to the Minister. This Act is designed to ensure that the Skilling Australians Fund is effectively implemented and managed, supporting the development of skills within the Australian workforce.

Scope and Application

The Migration Amendment (Skilling Australians Fund) Act 2018 amends the Migration Act 1958 to introduce changes relating to the nomination training contribution charge, which is imposed by the Migration (Skilling Australians Fund) Charges Act 2018. The Act applies to individuals and entities involved in the nomination process for temporary skilled visas, specifically targeting those who nominate a person for such a visa. It mandates that these nominees or their representatives must pay a nomination training contribution charge to the Commonwealth. The legislation also alters the conditions under which labour market testing must occur and the types of evidence that may accompany a nomination. The Act binds the Crown in right of the Commonwealth, each state, the Australian Capital Territory, and the Northern Territory but does not make the Crown liable for prosecution, though it can be liable for pecuniary penalties. The Act extends its application to nominations made after its commencement and includes transitional provisions for ongoing nominations. The Act further provides for contingent amendments depending on the timing of the commencement of another related Act, the Migration Amendment (Family Violence and Other Measures) Act 2018. The application of these contingent amendments hinges on whether the other Act commences before or after this Act, with specific provisions tailored accordingly.

Key Provisions

• The Migration Amendment (Skilling Australians Fund) Act 2018 (Act) amends the Migration Act 1958 (Migration Act) to introduce nomination training contribution charges, which are payable by a person nominating an individual for a temporary visa in certain circumstances. The Act requires that certain labour market testing be undertaken before a nomination is made and specifies how such testing should be conducted. It also requires that a nomination be accompanied by evidence of any advertising of the nominated position. The Act introduces these changes to the Migration Act through amendments and the addition of new provisions.
• The Act imposes obligations on persons making nominations for temporary visas, including the requirement to pay nomination training contribution charges in certain circumstances. It also requires that labour market testing be conducted before a nomination is made and that evidence of any advertising of the nominated position is provided. These obligations are set out in sections 140ZM, 140ZN, and 140ZO of the Migration Act, as amended by the Act. The Act also imposes obligations on the Minister for Immigration and Border Protection, who is responsible for determining the manner in which labour market testing should be conducted, the method of advertising, and the period and duration of advertising. These obligations are set out in sections 140GBA(5), (6), and (6A) of the Migration Act, as amended by the Act.
• The Act provides for civil penalties for the underpayment of nomination training contribution charges, with a maximum penalty of 60 penalty units. It also provides for the recovery of unpaid nomination training contribution charges and late payment penalties by action in a court of competent jurisdiction. These provisions are set out in section 140ZO of the Migration Act, as amended by the Act. The Act does not provide for criminal penalties for breaches of its provisions. However, it is an offence under the Migration Act to make a false or misleading statement in a nomination, with a maximum penalty of 120 penalty units or imprisonment for two years, or both. The Act also provides for the imposition of pecuniary penalties for breaches of the Migration Act, with a maximum penalty of 210 penalty units.

Legal classification tags

Area of Law

Immigration & Refugee Law

Commercial Law

Instrument

Act

Concepts

Commencement Provisions

Regulatory Standards

Licensing & Registration

Reporting & Disclosure Obligations

Enforcement Powers

Review & Sunset Clauses