Migration (IMMI 17/081: Specification of Occupations, a Person or Body, a Country or Countries) Repeal Instrument 2017

Administered by Department of Home Affairs

Legislation au F2017L00840 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Migration Regulations 1994

Migration (IMMI 17/081: Specification of Occupations, a Person or Body, a Country or Countries) Repeal Instrument 2017

(regulation 1.03; subregulations 1.15I(1) and 2.26B(1); paragraphs 2.72(10)(aa) and 2.72B(3)(b); sub-subparagraph 5.19(4)(h)(i)(A); subitem 1137(4C) of Schedule 1; item 4 of the table in subitem 1138(4) of Schedule 1; paragraph 1229(3)(k) of Schedule 1; item 4 of the table in subitem 1230(4) of Schedule 1; and paragraph 186.234(2)(a) of Schedule .)

 

  1. Instrument IMMI 17/081 is made under regulation 1.03; subregulations 1.15I(1) and 2.26B(1); paragraphs 2.72(10)(aa) 2.72B(3)(b); sub subparagraph 5.19(4)(h)(i)(A); subitem 1137(4C) of Schedule 1; item 4 of the table in subitem 1138(4) of Schedule 1; paragraph 1229(3)(k) of Schedule 1; item 4 of the table in subitem 1230(4) of Schedule 1; and paragraph 186.234(2)(a) of Schedule 2 of the Migration Regulations 1994 (the Regulations). 
  2. The instrument IMMI 17/081 repeals instrument Specification of Occupations, a Person or Body, a Country or Countries 2016/059 (IMMI 16/059) (F2016C01004) 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 16/059 will now be addressed in instruments: Migration (IMMI 17/060: Specification of Occupations—Subclass 457 Visa) Instrument 2017; Migration (IMMI 17/071: Specification of Occupations—Subclass 407 Visa) Instrument 2017; Migration (IMMI 17/072: Specification of Occupations and Assessing Authorities) Instrument 2017 and Migration (IMMI 17/080: Specification of Occupations and Assessing Authorities—Subclass 186 Visa) Instrument 2017.
  4. These instruments will specify occupations in regard to the occupations on the Medium and Long-term Strategic Skills List (MLTSSL) and the Short-term Skilled Occupation List (STSOL), in particular:
    1. instrument IMMI 17/060 will specify occupations for the purposes of Subclass 457 – Temporary Work (Skilled) visas; 
    2. instrument IMMI 17/071 will specify occupations for the purposes of Subclass 407 (Training) visas;
    3. instrument IMMI 17/072 will: specify occupations for the purposes of Subclass 189 (Skilled-Independent) visa, Subclass 489 (Skilled-Regional (Provisional)) visa, Subclass 485 (Temporary Graduate) visa, Subclass 190 (Skilled-Nominated) visa and Subclass 489 (Skilled-Regional (Provisional)) visa. This instrument will also specify the meaning of ANZSCO for the purposes of regulation 1.03, specify persons and bodies as relevant assessing authorities for the purposes of subregulation 2.26B(1), and specify skilled occupations applicable for the class for the purposes of  subregulation 1.15I(1); and
    4. instrument IMMI 17/080 will specify occupations and assessing authorities for the purposes of Subclass 186 (Employer Nomination Scheme) visa.
  5. Consultation was undertaken with the Department of Education and Training, the Department of Employment, the Department of Foreign Affairs and Trade, the Department of Industry, Innovation and Science, the Department of Health, the Department of Communications and the Arts, the Department of Infrastructure and Regional Development, the Department of Agriculture and Water Resources, the Australian Research Council and Austrade.
  6. The Office of Best Practice Regulation (OBPR) has advised that a Regulatory Impact Statement is not required (OBPR Reference 22495).
  7. Under section 10 of the Legislation (Exemptions and other Matters) Regulation 2015, the instrument making powers in regulation 1.03; subregulations 1.15I(1) and 2.26B(1); sub subparagraph 5.19(4)(h)(i)(A); subitem 1137(4C) of Schedule 1; item 4 of the table in subitem 1138(4) of Schedule 1; paragraph 1229(3)(k) of Schedule 1; item 4 of the table in subitem 1230(4) of Schedule 1; and paragraph 186.234(2)(a) of Schedule 2 to the Regulations are exempt from disallowance. The powers under paragraphs 2.72(10)(aa) and 2.72B(3)(b) are subject to disallowance under section 42 of the Legislation Act 2003 and a Statement of Compatibility with Human Rights has been provided at Attachment A.
  8. The instrument commences on 1 July 2017. 

 


Attachment A – Statement of Compatibility with Human Rights

Statement of Compatibility with Human Rights

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

 

Migration (IMMI 17/081: Specification of Occupations, a Person or Body, a Country or Countries) Repeal Instrument 2017

 

This 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 Specification of Occupations, a Person or Body, a Country or Countries Repeal Instrument

This Instrument (IMMI 17/081) repeals the Instrument ‘Specification of Occupations, a Person or Body, a Country or Countries 2016/059’ (IMMI 16/059) (F2016C01004) in accordance with subsection 33(3) of the Acts Interpretation Act 1901.

 

Instrument IMMI 16/059 specifies skilled occupations in regard to the occupations on the Medium and Long-term Strategic Skills List (MLTSSL) and the Short-term Skilled Occupations List (STSOL) for:

  • the Skilled Independent (subclass 189) visa;
  • the Skilled Regional (Provisional) (subclass 489) visa
  • the Temporary Graduate (subclass 485) visa
  • the Employer Nominated Scheme (subclass 186) visa
  • the Skilled Nominated (subclass 190) visa
  • the Temporary Work (Skilled) (subclass 457) visa; and
  • the Training (subclass 407) visa.

It also specifies Australian and New Zealand Standard Classification of Occupations (ANZSCO) codes relevant to assessment of nominations for skilled entry under the Migration Regulations.

These matters previously addressed in instrument IMMI 16/059 will now be addressed in instruments: Migration (IMMI 17/060: Specification of Occupations—Subclass 457 Visa) Instrument 2017; Migration (IMMI 17/071: Specification of Occupations—Subclass 407 Visa) Instrument 2017; Migration (IMMI 17/072: Specification of Occupations and Assessing Authorities) Instrument 2017 and Migration (IMMI 17/080: Specification of Occupations and Assessing Authorities—Subclass 186 Visa) Instrument 2017.

 

Human rights implications

The Instrument has been assessed against the seven core international human rights treaties.

Neither the International Covenant on Civil and Political Rights (ICCPR) nor the International Covenant on Economic, Social and Cultural Rights (ICESCR) give a right for non-citizens to enter Australia for the purposes of seeking residence or employment.  The UN Human Rights Committee, in its General Comment 15 on the position of aliens under the ICCPR, stated that:

The [ICCPR] does not recognize the right of aliens to enter or reside in the territory of a State party. It is in principle a matter for the State to decide who it will admit to its territory. However, in certain circumstances an alien may enjoy the protection of the [ICCPR] even in relation to entry or residence, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise.

Consent for entry may be given subject to conditions relating, for example, to movement, residence and employment. A State may also impose general conditions upon an alien who is in transit. However, once aliens are allowed to enter the territory of a State party they are entitled to the rights set out in the [ICCPR].

As such, Australia is able to set requirements for the entry of non-citizens into Australia and conditions for their stay, and does on the basis of reasonable and objective criteria.

Although the effect of repealing Instrument IMMI 16/059 in conjunction with replacing it with Instruments IMMI 17/060, IMMI 17/071, IMMI 17/072 and IMMI 17080 is that there is a net increase in the number of skilled occupations available to prospective visa applicants, 12 occupations have been removed. For those persons who are in Australia holding a visa and working in one of those occupations, or who wish to apply for a subsequent visa while in Australia, the right to work may be engaged.  Article 6(1) of the ICESCR states:

The States Parties to the present Covenant recognize 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.

The removal of 12 occupations does not prevent any current holder of the impacted visas from accessing work or impede their right to work for the duration of that visa because they will retain the current permission to work provided by the existing visa. A visa holder who wishes to continue working in Australia in one of the 12 occupations upon the expiry of their visa may instead apply for any other visa with work rights for which they meet the requirements under the Migration Regulations.

It is reasonable and necessary that the Minister may amend the list of skilled occupations for the purposes of nominations and visa applications because it allows the Minister the flexibility and precision required to carefully tailor it to reflect Australia’s labour market needs. The ability to tailor the occupations lists to Australia’s labour market needs helps to meet the legitimate objective of strengthening Australia’s economy through ensuring the integrity of Australia’s migration programme.

 

Conclusion

The Legislative Instrument is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

 

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

Overview

The Migration (IMMI 17/081: Specification of Occupations, a Person or Body, a Country or Countries) Repeal Instrument 2017 was enacted to repeal and replace the Specification of Occupations, a Person or Body, a Country or Countries 2016/059 instrument (IMMI 16/059) in line with the legislative power provided under the Migration Regulations 1994. This repeal and replacement were made under the authority granted by subsection 33(3) of the Acts Interpretation Act 1901, which allows for the repeal, amendment, or variation of legislative instruments. The instrument aims to address the need to update the skilled occupations list for various visa subclasses, reflecting Australia’s evolving labour market requirements and maintaining the integrity of the migration program. This is achieved by specifying occupations on the Medium and Long-term Strategic Skills List (MLTSSL) and the Short-term Skilled Occupation List (STSOL), and clarifying the meaning of ANZSCO for assessing authorities. The instrument was developed in consultation with various government departments and agencies and has been deemed compatible with human rights as per the Human Rights (Parliamentary Scrutiny) Act 2011. Although the repeal and replacement instruments increase the number of skilled occupations available, the removal of 12 occupations does not affect the rights of current visa holders to work in those occupations during the duration of their visas. The replacement instruments provide the necessary flexibility for the Minister to adjust the list of skilled occupations, thus allowing for the adaptation of Australia’s migration program to better suit the country’s economic needs.

Scope and Application

The Migration (IMMI 17/081: Specification of Occupations, a Person or Body, a Country or Countries) Repeal Instrument 2017 repeals the earlier Instrument IMMI 16/059, addressing skilled occupations listed on the Medium and Long-term Strategic Skills List (MLTSSL) and the Short-term Skilled Occupations List (STSOL) for various visa subclasses. This repeal is made under specific regulations of the Migration Regulations 1994 and in accordance with the Acts Interpretation Act 1901. The repeal is effective from 1 July 2017 and replaces the repealed instrument with new instruments specifying occupations for different visa categories, including Subclass 457 – Temporary Work (Skilled) visas, Subclass 407 (Training) visas, Subclass 189 (Skilled-Independent) visa, Subclass 489 (Skilled-Regional (Provisional)) visa, Subclass 485 (Temporary Graduate) visa, Subclass 190 (Skilled-Nominated) visa, and Subclass 186 (Employer Nomination Scheme) visa. The legislative instrument is compatible with human rights as it allows the Minister the flexibility to tailor the occupations list to meet Australia’s labour market needs, ensuring a reasonable and proportionate approach to migration policy.

Key Provisions

The primary sections of the instrument IMMI 17/081 focus on the repeal of the previous instrument, IMMI 16/059, which specified skilled occupations relevant to various visa subclasses under the Migration Regulations 1994. This repeal is necessary to facilitate the introduction of new instruments that will further specify these occupations and related matters, as outlined in section 33(3) of the Acts Interpretation Act 1901. The repealed instrument, IMMI 16/059, had addressed skilled occupations on the Medium and Long-term Strategic Skills List (MLTSSL) and the Short-term Skilled Occupation List (STSOL) for several visa subclasses, including the Skilled Independent (subclass 189), Skilled Regional (Provisional) (subclass 489), Temporary Graduate (subclass 485), Employer Nominated Scheme (subclass 186), Skilled Nominated (subclass 190), Temporary Work (Skilled) (subclass 457), and Training (subclass 407) visas. The repeal will be followed by the issuance of four new instruments: IMMI 17/060, IMMI 17/071, IMMI 17/072, and IMMI 17/080, which will cover the same occupational lists but in a more refined manner. The obligations imposed by this instrument on the relevant parties and entities primarily revolve around the updated specifications of skilled occupations and the new occupational lists for visa purposes. These obligations ensure that the lists are reflective of Australia’s current labour market needs and economic objectives, allowing the Minister for Immigration and Border Protection to exercise necessary flexibility and precision. Parties such as visa applicants, employers, and assessing authorities must adhere to the new specifications when applying for or assessing visas. The new instruments will also specify the ANZSCO codes relevant to the assessment of nominations for skilled entry under the Migration Regulations, ensuring clarity and consistency in the application process. The instrument does not explicitly mention any offences, penalties, or civil/criminal consequences for breaches. However, any failure to comply with the updated specifications of occupations and the revised lists could indirectly lead to complications in visa applications or assessments. Such non-compliance could potentially result in the rejection of visa applications or the revocation of existing visas if it is found that the occupation listed does not meet the updated criteria. While the instrument itself does not detail specific penalties, the Migration Regulations 1994, under which this instrument operates, provide for a range of administrative and legal actions, including the possibility of fines and imprisonment for serious breaches related to migration matters. In summary, the repeal of IMMI 16/059 and the introduction of new instruments are designed to refine and better align the specifications of skilled occupations with Australia's economic needs. The obligations on the relevant parties are to adhere to these new specifications, ensuring a streamlined and effective migration process. Although the instrument does not specify penalties directly, non-compliance could lead to serious consequences under the broader Migration Regulations.

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