EXPLANATORY STATEMENT
Migration Amendment (Temporary Sponsored Visas) Act 2013
Proclamation
Item 3 of the table in subsection 2(1) of the Migration Amendment (Temporary Sponsored Visas) Act 2013 (the Act) provides that Schedule 2 to the Act is to commence on a single day to be fixed by Proclamation. However, if the provisions(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. The Act received the Royal Assent on
29 June 2013.
The purpose of the Proclamation is to fix 23 November 2013 as the day on which Schedule 2 to the Act will commence.
Schedule 2 to the Act introduces labour market testing to ensure that Australian citizens and Australian permanent residents have the first opportunity to fill job vacancies. Labour market testing, in relation to a position nominated by a sponsor, means testing the labour market to demonstrate whether a suitably qualified and experienced Australian citizen or Australian permanent resident is readily available to fill the position.
Schedule 2 to the Act contains the operative provisions of the Act, which will amend the Migration Act 1958 and the Migration Regulations 1994 to require sponsors of Subclass 457 visas to undertake labour market testing, prior to nominating an overseas worker for a Subclass 457 visa. Sponsors will be required to provide evidence of their attempts to recruit suitably qualified and experienced Australian citizens or Australian permanent residents to the position, specifically details of any advertising (paid or unpaid) of the position or any other similar position.
To ensure Australia meets its international trade obligations, including such an obligation that arises under any agreement between Australia and another country, or other countries, the labour market requirement will not apply where it would be inconsistent with Australia’s international trade obligations. The relevant obligations are determined by the Minister in a legislative instrument as an international trade obligation of Australia. Exemptions from the labour market testing requirement may apply where:
- the Minister is satisfied that a major disaster has occurred in Australia and the exemption is necessary or desirable in order to assist disaster relief or recovery; or
- the Minister has specified, by way of legislative instrument, the nominated occupation based on skill and occupational level – that is, the nominated occupation is within the ‘Skill Level 1’ or ‘Skill Level 2’ classification of Australian and New Zealand Standard Classification of Occupations (ANZSCO) and it is specified in a legislative instrument.
Schedule 2 to the Act prescribes standard business sponsors (the term used for Subclass 457 visa sponsors) as the class of sponsors required to undertake labour market testing.
Consultations have taken place with various Commonwealth agencies including the Attorney-General’s Department, the Department of the Prime Minister and Cabinet, the Department of Foreign Affairs and Trade, the former Department of Education, Employment and Workplace Relations, the Fair Work Ombudsman, the Department of Treasury, the Department of Resources, Energy and Tourism, the Department of Finance and Deregulation and the Office of Best Practice Regulation.
The Office of Best Practice Regulation (the OBPR) has been consulted in relation to the amendments contained in Schedule 2 to the Act but the former Prime Minister granted an exemption on the basis of exceptional circumstances. A post-implementation review will be required within 1 to 2 years of implementation.
The Proclamation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.