Migration (IMMI 17/075: Repeal of Training Benchmarks and Training Requirements) Instrument 2017

Administered by Department of Home Affairs

Legislation au F2017L00795 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Migration Regulations 1994

Migration (IMMI 17/075: Repeal of Training Benchmarks and Training Requirements) Instrument 2017

(Paragraphs 2.59(d), 2.68(e), subregulations 2.87B(2), 2.87B(3) and sub-sub-subparagraph 5.19(4)(h)(i)(B)(I))

  1. Instrument IMMI 17/075 is made under paragraphs 2.59(d), 2.68(e), subregulations 2.87B(2) and 2.87B(3), and sub-sub-subparagraph 5.19(4)(h)(i)(B)(I) of the Migration Regulations 1994 (the Regulations). 
  2. The instrument repeals Migration (Specification of Training Benchmarks and Training Requirements) Instrument 2013 (IMMI 13/030) (F2013L01236) in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (the AIA). Subsection 33(3) of the AIA states that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character, the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
  3. The matters previously addressed in instrument IMMI 13/030 will now be addressed in instrument Migration (IMMI 17/045: Specification of Training Benchmarks and Training Requirements) Instrument 2017 and instrument Migration (IMMI 17/074: Specification of Training Requirements) Instrument 2017.
  4. Instrument IMMI 17/045 and instrument IMMI 17/074 will specify Training Benchmarks A and B.  Instrument IMMI 17/045 will specify the training benchmarks and training requirements for the purposes of paragraphs 2.59(d), 2.68(e) and subregulations 2.87B(2) and 2.87B(3) and Instrument IMMI 17/074 will specify for the purposes of 5.19(4)(h)(i)(B)(I) of the Regulations. 
  5. The purpose of instrument IMMI 17/045 and instrument IMMI 17/074 is to clarify policy settings for the training benchmarks and training requirements so that a nominator or sponsor has a clear understanding of those training requirements.  The purpose is also to address integrity concerns with the training benchmarks and training requirements by amending the types of applicable expenditure.  

 

6.        No consultation was undertaken.  As provided in instrument IMMI 17/045 and instrument IMMI 17/074, the new instruments incorporate existing policy guidance related to the previous instrument that addressed matters specified under paragraphs 2.59(d), 2.68(e), and subregulations 2.87B(2) and 2.87B(3), and sub-sub-subparagraph 5.19(4)(h)(i)(B)(I) of the Regulations.   

7.        The Office of Best Practice Regulation (OBPR) has advised that a Regulatory Impact Statement is not required (OBPR Reference 21946).             

8. Under section 10 of the Legislation (Exemptions and other Matters) Regulation 2015, the instrument making power sub-sub-subparagraph 5.19(4)(h)(i)(B)(I) is exempt from disallowance. The powers under paragraphs 2.59(d), 2.68(e) and subregulations 2.87B(2) and 2.87B(3) are subject to disallowance under section 42 of the Legislation Act 2003 and a Statement of Compatibility with Human Rights has been provided.

9.  The instrument commences on 1 July 2017. 

 

 


Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Repeal of Training Benchmarks and Training Requirements

This Disallowable Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Legislative Instrument

Regulation 2.59 and 2.68 of the Migration Regulations 1994 (the Regulations) require the standard business sponsor for a Subclass 457 (Temporary Work (Skilled)) visa (457 visa) to meet Training Benchmark A or Training Benchmark B. Clause 186.233 of Schedule 2 to the Regulations requires that an applicant for a visa under the direct entry stream of the Subclass 186 (Employer Nomination Scheme) visa was nominated in an application for approval that seeks to meet the requirements of subparagraph 5.19(4)(h)(i) of the Regulations.   Subparagraph 5.19(4)(h)(i) includes the requirement to meet training benchmarks specified in a legislative instrument.

Legislative Instrument IMMI 13/030 ‘Specification of Training Benchmarks and Training Requirements’ specifies the training that must be provided to Australian citizens and permanent residents by employers seeking to sponsor a foreign worker for a 457 visa or nominate a foreign worker for a 186 visa.

The purpose of this new Disallowable Legislative Instrument IMMI 17/075 ‘Repeal of Training Benchmarks and Training Requirements’ is to repeal IMMI 13/030 so that it may be replaced by the new Migration (IMMI 17/045: ‘Specification of Training Benchmarks and Training Requirements) Instrument 2017’ and the new Migration (IMMI 17/074: ‘Specification of Training Requirements) Instrument 2017’. 

Human rights implications

Article 6.1 of International Covenant on Economic, Social and Cultural Rights (ICESCR) recognizes:

The right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.

Article 6.2 of ICESCR states that:

The steps to be taken by a State Party of the present Covenant to achieve the full realization of [the right to work] shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedom to the individual.

Australia recognises the ‘right to work’ under Article 6.1 in relation to Australian citizens and permanent residents.  Making the training obligations to Australians and permanent residents a part of the sponsorship obligations under IMMI13/030 was a mechanism for Australia to comply with Article 6.1 and 6.2 of the ICESCR.  Despite IMMI 17/075 repealing IMMI 13/030, Australia will still comply with Articles 6.1 and 6.2 of the ICESCR in a similar mechanism. This is because the new IMMI 17/045 and IMMI 17/074 that will replace IMMI 13/030, will also specify the training that must be provided to Australian citizens and permanent residents by employers seeking to sponsor a foreign worker for a 457 visa or nominate a foreign worker for a 186 visa. 

Conclusion

The Disallowable Legislative Instrument is compatible with human rights, to the extent that IMMI13/030 will be replaced by the new IMMI 17/045 and IMMI 17/074, which also promote the training of Australian citizens and permanent residents in support of Article 6 of the ICESCR.

 

The Hon. Peter Dutton MP, Minister for Immigration and Border Protection

 

 

Overview

The Migration Regulations 1994, administered by the Australian Government, were amended by the Migration (IMMI 17/075: Repeal of Training Benchmarks and Training Requirements) Instrument 2017, which was enacted to address the need for clarity and integrity in the training requirements for skilled workers. This instrument repealed the previous Migration (Specification of Training Benchmarks and Training Requirements) Instrument 2013, replacing it with two new instruments: the Migration (IMMI 17/045: Specification of Training Benchmarks and Training Requirements) Instrument 2017 and the Migration (IMMI 17/074: Specification of Training Requirements) Instrument 2017. These new instruments specify the training benchmarks and requirements for skilled workers, ensuring that nominators and sponsors have clear policy settings and addressing any integrity concerns by modifying the types of applicable expenditure. The repeal and replacement were carried out under the authority of the Acts Interpretation Act 1901, with the new instruments taking effect on 1 July 2017. The policy objective behind these legislative changes is to maintain Australia's commitment to the right to work as stipulated in the International Covenant on Economic, Social and Cultural Rights, specifically Articles 6.1 and 6.2. Despite the repeal of the 2013 instrument, the replacement instruments continue to uphold these obligations by specifying the necessary training for Australian citizens and permanent residents, thereby ensuring compliance with international standards while providing clear guidance for employers.

Scope and Application

The Migration Regulations 1994 (Regulations) are administered by the Commonwealth of Australia, applying to all individuals and entities seeking to sponsor a foreign worker under a subclass 457 (Temporary Work (Skilled)) visa or nominate a foreign worker under the direct entry stream of a subclass 186 (Employer Nomination Scheme) visa. These Regulations govern the training benchmarks and requirements that must be met by employers to ensure that Australian citizens and permanent residents receive adequate training opportunities. Instrument IMMI 17/075, made under specific provisions of the Regulations, repeals the Migration (Specification of Training Benchmarks and Training Requirements) Instrument 2013, effectively replacing it with the new Migration (Specification of Training Benchmarks and Training Requirements) Instrument 2017 and Migration (Specification of Training Requirements) Instrument 2017. These new instruments aim to clarify policy settings and address integrity concerns by amending the types of applicable expenditure. The repeal and replacement aim to provide a clearer understanding of the training requirements for nominators and sponsors while ensuring compliance with international obligations under the International Covenant on Economic, Social and Cultural Rights. No consultation was undertaken for the development of these instruments, as they incorporate existing policy guidance. The Office of Best Practice Regulation has advised that a Regulatory Impact Statement is not required. The instrument making power for sub-sub-subparagraph 5.19(4)(h)(i)(B)(I) is exempt from disallowance, while the powers under paragraphs 2.59(d), 2.68(e), and subregulations 2.87B(2) and 2.87B(3) are subject to disallowance. A Statement of Compatibility with Human Rights has been provided, confirming that the legislative instrument aligns with Australia's obligations under international human rights instruments, particularly the right to work. The instrument commenced on 1 July 2017.

Key Provisions

The primary operative sections of the Migration Regulations 1994 (the Regulations) affected by this legislation are sections 2.59, 2.68, 2.87B, and 5.19(4)(h)(i)(B)(I) (paragraphs). Section 2.59 and 2.68 pertain to the requirements for the standard business sponsor for a Subclass 457 visa to meet specific training benchmarks. Section 2.87B relates to the training requirements for an employer who wishes to sponsor a foreign worker. Subparagraph 5.19(4)(h)(i) specifies the training benchmarks that must be met for an applicant in the direct entry stream of the Subclass 186 visa. The Migration (IMMI 17/075: Repeal of Training Benchmarks and Training Requirements) Instrument 2017 (Instrument IMMI 17/075) repeals the Migration (Specification of Training Benchmarks and Training Requirements) Instrument 2013 (IMMI 13/030) and replaces it with the Migration (IMMI 17/045: Specification of Training Benchmarks and Training Requirements) Instrument 2017 and the Migration (IMMI 17/074: Specification of Training Requirements) Instrument 2017. The obligations and requirements imposed by the Regulations and the repealed instrument on parties, primarily employers and sponsors, include the provision of training to Australian citizens and permanent residents. Under the previous instrument IMMI 13/030, sponsors for a Subclass 457 visa and nominees for a Subclass 186 visa were required to meet certain training benchmarks, which included training Australian citizens and permanent residents. This obligation is carried forward under the new instruments IMMI 17/045 and IMMI 17/074, which specify the training that must be provided to Australian citizens and permanent residents by employers seeking to sponsor a foreign worker for a 457 visa or nominate a foreign worker for a 186 visa. This ensures that a clear understanding of the training requirements is maintained, thereby upholding policy settings and addressing integrity concerns. Breaches of the provisions within the Migration Regulations 1994 may lead to civil or criminal consequences. For instance, failing to comply with the training benchmarks and requirements could result in the revocation of a visa or refusal of a visa application. The specific consequences are detailed in the Regulations themselves, which may include fines or imprisonment for serious breaches. Under Instrument IMMI 17/075, the repealed instrument IMMI 13/030 is superseded by the new instruments, but the underlying obligations and consequences for non-compliance remain consistent. The Statement of Compatibility with Human Rights affirms that these changes are made in a manner that aligns with Australia's obligations under international human rights instruments, particularly concerning the right to work and the provision of training.

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