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.
Overview
The Migration Amendment (Temporary Sponsored Visas) Act 2013 was enacted to introduce labour market testing for Subclass 457 visa sponsorships, ensuring that Australian citizens and permanent residents are given priority for job vacancies before overseas workers are considered. This Act received Royal Assent on 29 June 2013 and is set to commence on 23 November 2013, as fixed by the Proclamation. The primary objective is to amend the Migration Act 1958 and the Migration Regulations 1994 to mandate labour market testing by sponsors, requiring them to demonstrate attempts to recruit suitable Australian candidates before nominating overseas workers. This change aims to meet Australia's international trade obligations while ensuring that local talent is prioritised. Exemptions from these requirements are provided under specific circumstances, such as major disasters or particular skill levels specified by the Minister. The legislation has undergone consultation with multiple Commonwealth agencies to ensure comprehensive coverage and compliance with existing obligations.
Scope and Application
The Migration Amendment (Temporary Sponsored Visas) Act 2013 applies to sponsors of Subclass 457 visas under the Migration Act 1958, with a primary focus on ensuring that Australian citizens and Australian permanent residents have priority access to job vacancies before overseas workers can be considered for such positions. The Act, which received Royal Assent on 29 June 2013, mandates labour market testing for sponsors to demonstrate that suitably qualified and experienced local candidates are not readily available for the nominated positions. This requirement does not apply if it conflicts with Australia's international trade obligations, which are determined by the Minister in a legislative instrument. Exemptions from the labour market testing are possible if the Minister deems it necessary due to a major disaster or if the nominated occupation falls within specific skill levels specified in a legislative instrument. The Act’s geographic reach is national, and its provisions are set to commence on 23 November 2013, as fixed by Proclamation. The application of the Act can be extended or restricted through subordinate instruments, ensuring flexibility in its implementation.
Key Provisions
The Migration Amendment (Temporary Sponsored Visas) Act 2013 introduces key amendments through its Schedule 2, which primarily requires sponsors of Subclass 457 visas to conduct labour market testing (section 3). This testing ensures that Australian citizens and permanent residents are given the first opportunity to fill job vacancies before an overseas worker is nominated. Labour market testing involves demonstrating through evidence that suitably qualified and experienced Australian citizens or permanent residents are available to fill the nominated position. Sponsors must provide details of any advertising or other recruitment efforts (section 4). However, this requirement does not apply if it conflicts with Australia’s international trade obligations, which are determined by the Minister and outlined in a legislative instrument (section 5). Exemptions from labour market testing can be granted by the Minister in specific circumstances, such as during a major disaster or for certain occupations specified in a legislative instrument (section 6).
Under the Act, sponsors of Subclass 457 visas are obligated to undertake labour market testing to ensure that local talent is considered before nominating an overseas worker. This includes providing evidence of recruitment efforts, such as advertising details (section 4). The Act also requires that sponsors adhere to Australia’s international trade obligations, which are defined by the Minister (section 5). The Act further mandates that the Minister can grant exemptions from the labour market testing requirement in exceptional cases, such as during a major disaster or for certain low-skill occupations (section 6). These obligations ensure that the local workforce is prioritised while balancing Australia’s international commitments.
Breaches of the labour market testing requirement under the Act can lead to various civil or criminal consequences, depending on the severity and intent of the non-compliance. While the specific penalties are not detailed in the explanatory statement, the Act implies that non-compliance could result in legal actions against the sponsor, including fines or other penalties as prescribed by the relevant legislation. The exact penalties would be determined by the courts based on the specific circumstances of the breach. The Act also indicates that a post-implementation review will be conducted within 1 to 2 years of the implementation of these provisions to assess their effectiveness and impact.