EXPLANATORY STATEMENT
Issued by the Minister for Citizenship and Multicultural Affairs
Migration Act 1958
Migration Regulations 1994
Migration Amendment (Skilling Australians Fund) Regulations 2018
The Migration Act 1958 (the Migration Act) is an Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons.
Subsection 504(1) of the Migration Act relevantly provides that the Governor-General may make regulations prescribing matters required or permitted to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Migration Act. In addition, the amendments would be authorised by the provisions listed in the Attachment A.
The Migration Amendment (Skilling Australians Fund) Regulations 2018 (the Regulations) amend the Migrations Regulations 1994 (the Migration Regulations) to reflect and implement changes to the Migration Act made by the Migration Amendment (Skilling Australians Fund) Act 2018 (the SAF Act) and make other minor amendments.
The SAF Act amends the Migration Act to implement the ‘nomination training contribution charge’ (the charge) imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (the SAF Charges Act) and the Migration (Skilling Australians Fund) Charges Regulations 2018 (the SAF Charges Regulations). The charge is imposed on employers who nominate workers for temporary or permanent skilled work visas. The SAF Act also makes related amendments to the Migration Act. The SAF Act, SAF Charges Act, and SAF Charges Regulations commence on 12 August 2018.
In particular, the Regulations prescribe the nominations that attract the charge. The charge applies to the following nominations:
- nomination of an occupation in relation to a holder of the repealed Subclass 457 (Temporary Work (Skilled)) visa;
- nomination of an occupation in relation to a holder of, or applicant or proposed applicant for the Subclass 482 (Temporary Skill Shortage) visa; and
- nomination of a position in relation to an applicant or proposed applicant for a permanent employer sponsored work visa – the Subclass 186 (Employer Nomination Scheme) visa or the Subclass 187 (Regional Sponsored Migration Scheme) visa.
The Regulations also amend the Migration Regulations to reflect amendments to the Migration Act providing that nominations for temporary work visas may be made by approved sponsors and persons who have applied to become approved sponsors, including persons negotiating with the Commonwealth for a work agreement. Allowing a person who has applied for approval as a sponsor, or is a party to negotiations for a work agreement to lodge a nomination is more efficient for both the nominator and the Department of Home Affairs (the Department), as it allows the sponsorship application and nomination application to be lodged at the same time.
The Regulations also provide the grounds on which the charge may be refunded and make other minor amendments.
The Regulations are part of a broad package of reforms for the employer sponsored skilled visa programs, announced by the Government on 18 April 2017. The reforms include the replacement of the Subclass 457 (Temporary Work (Skilled)) visa with the Subclass…
Overview
The Migration Amendment (Skilling Australians Fund) Regulations 2018 are subsidiary legislation under the Migration Act 1958, designed to implement changes introduced by the Migration Amendment (Skilling Australians Fund) Act 2018 and the Migration (Skilling Australians Fund) Charges Act 2018. These amendments aim to replace the existing training benchmarks for employers sponsoring skilled workers with a new nomination training contribution charge, to be levied on employers nominating workers for temporary or permanent skilled work visas. This new charge is intended to fund the Skilling Australians Fund, which will support training opportunities for Australian citizens and permanent residents. The Regulations amend the Migration Regulations 1994 to reflect these changes, including specifying the types of nominations that will attract the charge and the conditions under which the charge may be refunded. Additionally, the Regulations streamline the nomination process by allowing approved sponsors and those negotiating for a work agreement to make nominations, facilitating more efficient processing. These changes are part of a broader reform package aimed at enhancing the integrity of the skilled migration programs, ensuring they are used to address genuine skill shortages, and improving training outcomes for Australians.
Scope and Application
The Migration Amendment (Skilling Australians Fund) Regulations 2018 (the Regulations) are subordinate legislation that implement the Migration Amendment (Skilling Australians Fund) Act 2018 (the SAF Act). The SAF Act, in turn, implements the Migration (Skilling Australians Fund) Charges Act 2018 (the SAF Charges Act) and the Migration (Skilling Australians Fund) Charges Regulations 2018 (the SAF Charges Regulations). These legislative instruments together introduce a 'nomination training contribution charge' on employers who nominate skilled workers for temporary or permanent skilled work visas. The Regulations apply to employers seeking to nominate a worker for the Subclass 457 (Temporary Work (Skilled)) visa, Subclass 482 (Temporary Skill Shortage) visa, Subclass 186 (Employer Nomination Scheme) visa, and Subclass 187 (Regional Sponsored Migration Scheme) visa on or after 12 August 2018. The Regulations also apply to employers who nominate a worker on or after 17 November 2018 in relation to the refund of the nomination training contribution charge. The Regulations are designed to streamline the nomination process, ensure fair processing, and support the Skilling Australians Fund which aims to improve training opportunities for Australian citizens and permanent residents. The Regulations are compatible with human rights as they support the right to work and facilitate training across various industries and occupations in Australia.
Key Provisions
- The Migration Amendment (Skilling Australians Fund) Regulations 2018 (the Regulations) amend the Migration Regulations 1994 to implement changes made by the Migration Amendment (Skilling Australians Fund) Act 2018 (the SAF Act). The Regulations introduce a nomination training contribution charge for employers who nominate skilled workers for temporary or permanent skilled work visas. This charge aims to offset expenditure from the Skilling Australians Fund, which funds apprenticeships and traineeships in occupations with high demand or future growth potential. The Regulations also allow persons who have applied to be approved as sponsors or are negotiating a work agreement to lodge a nomination, streamlining the process for both the nominator and the Department of Home Affairs. The charge applies to nominations of an occupation in relation to a holder of the repealed Subclass 457 visa, a holder of, or applicant or proposed applicant for, the Subclass 482 visa, and a position in relation to an applicant or proposed applicant for a permanent employer sponsored work visa – the Subclass 186 or Subclass 187 visa. The Regulations provide the grounds on which the charge may be refunded and make other minor amendments.
- The Regulations impose several obligations on parties governed by them. Employers who nominate skilled workers for the specified visas must pay the nomination training contribution charge. Employers who underpay the charge must settle the amount before another nomination can be approved. The Department of Home Affairs is required to verify that employers have paid the correct amount of the nomination training contribution charge. Approved sponsors and persons negotiating a work agreement must keep specified records to enable the Department to verify payment of the charge. Additionally, the Regulations amend the Migration Regulations to allow nominations for temporary work visas to be made by approved sponsors and persons negotiating a work agreement, which streamlines the nomination process.
- There are specific consequences for breaching the Regulations. Employers who underpay the nomination training contribution charge must settle the full amount before another nomination can be approved. Failure to pay the charge in full before making another nomination results in the employer being unable to proceed with the new nomination. Additionally, if employers breach any other obligations imposed by the Regulations, such as failing to keep the required records, they may face penalties or other consequences as outlined in the Migration Act 1958 and the Migration Regulations 1994. The Department of Home Affairs has the authority to enforce these obligations and may take appropriate action against non-compliant employers.
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