EXPLANATORY STATEMENT
Migration Regulations 1994
MIGRATION (IMMI 18/007: SPECIFICATION OF OCCUPATIONS AND ASSESSING AUTHORITIES) INSTRUMENT 2018
(regulation 1.03; subregulation 1.15I(1); subregulation 2.26B(1); 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; and item 4 of the table in subitem 1230(4) of Schedule 1)
- Instrument IMMI 18/007 is made under regulation 1.03; subregulation 1.15I(1); subregulation 2.26B(1); 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; and item 4 of the table in subitem 1230(4) of Schedule 1 to the Migration Regulations 1994 (the Regulations).
- The instrument operates to:
- specify skilled occupations applicable for the class for the purposes of subregulation 1.15I(1);
- specify skilled occupations for the purposes of item 4 of the table in subitem 1137(4B), item 4 of the table in subitem 1230(4), paragraph 1229(3)(k), item 4 of the table in subitem 1138(4), and item 4 of the table in subitem 1230(4), of Schedule 1 to the Regulations in regard to the specification of occupations, where relevant, on the Medium and Long-term Strategic Skills List (MLTSSL) or the Short-term Skilled Occupation List (STSOL); and
- specify persons and bodies as relevant assessing authorities for the purposes of subregulation 2.26B(1).
- The occupations that have been added to and removed from the MLTSSL and STSOL compared to the previous relevant instrument IMMI 17/072 follow a regular six-monthly review by the Department of Jobs and Small Business of occupations eligible for skilled visas. This review takes into account advice from Government departments, labour market analysis and stakeholder consultation. The amended occupation lists ensure that the entry of skilled foreign workers to Australia remains carefully calibrated to Australia’s needs.
- The instrument is different from the instrument it replaces, IMMI 17/072, in the following respects:
- The occupations of “horse breeder” (ANZSCO 121316) and “management consultant” (ANZSCO 224711) have been removed from the STSOL and added to the MLTSSL.
- The assessing authority for the occupation “accountant (general)” (ANZSCO 221111) has been changed from the Institute of Chartered Accountants of Australia (ICAA) to Chartered Accountants Australia and New Zealand (CAANZ).
- The occupations of “hair or beauty salon manager” (ANZSCO 142114) and “building associate” (ANZSCO 312112) have been removed from the STSOL.
- The occupations of “psychotherapist” (ANZSCO 272314), “property manager” (ANZSCO 612112) and “real estate representative” (ANZSCO 612115) have been added to the STSOL.
5. The instrument repeals the Migration (IMMI 17/072: Specification of Occupations and Assessing Authorities) Instrument 2017 in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (the Acts Interpretation Act). Subsection 33(3) of the Acts Interpretation Act 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.
6. The application provision in Part 2 of Schedule 1 to the instruments provides that the repealed instrument continues in force in relation to the following:
- each person included in a class of persons mentioned in column 1 of items 1 and 3 of the table in subsection 6(1) of the repealed instrument, if the invitation mentioned in those items is issued before 17 January 2018; and
- a person included in the class of persons mentioned in column 1 of item 2 in the table in subsection 6(1) of the repealed instrument, if the visa application mentioned in that item is made by that person before 17 January 2018.
- The Department of Jobs and Small Business led this review, and consulted with the Department of Home Affairs as well as a number of other Government agencies, stakeholders and industry representatives.
- The Office of Best Practice Regulation (OBPR) has advised that a Regulatory Impact Statement is not required (OBPR Reference: 23086).
- Under section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015, the instrument is exempt from disallowance and therefore a Statement of Compatibility with Human Rights is not required.
- The instrument commences on 17 January 2018.
Overview
The Migration (IMMI 18/007: Specification of Occupations and Assessing Authorities) Instrument 2018, enacted in 2018, was introduced to address the need for a regularly updated list of skilled occupations for the purposes of skilled migration to Australia. This instrument was made under the Migration Regulations 1994 by the Australian Government to provide a legislative framework that ensures the entry of skilled foreign workers aligns with Australia’s economic needs. The policy objective behind this instrument is to maintain a calibrated flow of skilled workers into Australia by specifying skilled occupations on the Medium and Long-term Strategic Skills List (MLTSSL) and the Short-term Skilled Occupation List (STSOL), and by designating relevant assessing authorities. The Department of Jobs and Small Business, in consultation with various stakeholders, conducts a six-monthly review of the occupation lists to reflect current labour market requirements and economic priorities.
Scope and Application
Instrument IMMI 18/007 applies to skilled occupations that are specified for visa purposes under the Migration Regulations 1994, ensuring that these occupations are aligned with Australia's strategic labour needs. The specified occupations are those listed on the Medium and Long-term Strategic Skills List (MLTSSL) and the Short-term Skilled Occupation List (STSOL), which determine eligibility for skilled migration visas. This instrument also designates assessing authorities for certain occupations, ensuring that the qualifications and skills of migrants meet Australian standards. The changes to the lists and assessing authorities are made through a rigorous review process involving the Department of Jobs and Small Business, labour market analysis, and stakeholder consultation. The geographic reach of this instrument is national, impacting all skilled migrants applying for entry into Australia. The instrument does not apply to persons who were already in the process of applying for a visa before its commencement date, as specified in the application provision. Subordinate instruments may further extend or restrict the application of this Act as necessary.
Key Provisions
The Migration (IMMI 18/007: Specification of Occupations and Assessing Authorities) Instrument 2018 (Instrument IMMI 18/007) outlines the skilled occupations eligible for the skilled migration program in Australia. It specifies skilled occupations for the purposes of subregulation 1.15I(1) of the Migration Regulations 1994 (Regulations), and the Medium and Long-term Strategic Skills List (MLTSSL) and the Short-term Skilled Occupation List (STSOL) for the purposes of Schedule 1 of the Regulations. Additionally, the instrument specifies relevant assessing authorities for these occupations under subregulation 2.26B(1). These lists are subject to a regular six-monthly review by the Department of Jobs and Small Business, which considers advice from government departments, labour market analysis, and stakeholder consultation to ensure the skilled migration program meets Australia's needs.
The Instrument IMMI 18/007 imposes specific obligations on the parties and entities it governs. It mandates the Department of Jobs and Small Business to conduct a six-monthly review of the occupations listed on the MLTSSL and STSOL, taking into account various factors including labour market needs and stakeholder feedback. The instrument also requires the designated assessing authorities, such as Chartered Accountants Australia and New Zealand (CAANZ) for the occupation of "accountant (general)" (ANZSCO 221111), to provide assessments and certifications for skilled migration applications. Employers and applicants must ensure that the occupations listed in the instrument are correctly identified and that any required assessments are completed by the specified authorities.
Breaches of the provisions set out in the Instrument IMMI 18/007 can lead to various consequences. Non-compliance with the specified skilled occupations or assessing authorities can result in visa applications being rejected or already granted visas being revoked. The Regulations provide for penalties, including fines and imprisonment, for fraudulent activities related to migration applications. While specific penalties for breaches related to the Instrument IMMI 18/007 are not detailed in the explanatory statement, general penalties under the Migration Act 1958 can include fines of up to $49,500 and/or imprisonment for up to five years for individuals, and higher penalties for corporate entities. These penalties reflect the seriousness with which the Australian government treats breaches of migration laws.
The Instrument IMMI 18/007 also includes transitional provisions. For example, it continues to apply to persons included in specific classes of persons if their invitations or visa applications were made before 17 January 2018, the date the instrument commenced. This ensures that ongoing applications are not disrupted by changes to the occupation lists. Additionally, the instrument is exempt from disallowance under section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015, meaning that a Statement of Compatibility with Human Rights is not required. This reflects the legislative framework's confidence in the instrument's alignment with broader legislative objectives.