EXPLANATORY STATEMENT

Migration Regulations 1994

Migration (IMMI 18/041: Minimum Salary Levels for the Subclass 457 – Temporary Business (Long Stay) Visa) Repeal Instrument 2018

(paragraph 2.82(2)(aa))

1. Instrument IMMI 18/041 is made under paragraph 2.82(2)(aa) of the Migration Regulations 1994 (the Regulations).
2. The Instrument revokes IMMI 09/109 (F2009L03516).  IMMI 09/109 is repealed:
   1. under paragraph 2.82(2)(aa) of the Regulations in accordance with
      subsection 33(3) of the Acts Interpretation Act 1901, which states 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; and
   2. subsequent to the repeal of 2.79(3A) of the Regulations by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018; and
   3. subsequent to the repeal of 2.79(2A)(c)(ii) of the Regulations by the Migration Amendment (Redundant and Other Provisions) Regulation 2014.
3. The instrument IMMI 09/109, operated to specify the following:
   1. the methodology for calculating the minimum salary level using a salary formula, definitions and illustrative examples; and
   2. the frequency with which the minimum salary should be paid; and
   3. the records that were required to be kept by sponsor and parties to work agreements.
4. The matters specified under IMMI 09/109 are no longer relevant as a result of regulation amendment.
5. The instrument operates to reflect past regulation amendments and the amendments to the Regulations by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018.
6. The purpose of the instrument is to repeal IMMI 09/109.
7. The instrument is part of a broad package of reforms for the employer sponsored skilled visa programs, announced by the Government on 18 April 2017. The Department of Home Affairs has engaged with external stakeholders since the announcement in developing the policy settings and considered feedback received.
8. These reforms were also informed by earlier reviews including: the 2014 Independent Review into the integrity of the 457 programme; the 2016 Productivity Commission Inquiry Report: Migrant Intake into Australia; the 2016 Review of the Temporary Skilled Migration Income Threshold; and the 2016 Senate Inquiry: A National Disgrace: The Exploitation of Temporary Work Visa Holders. These reviews were subject to extensive consultation processes, including: individuals; academics; bodies and businesses who use the employer sponsored skilled visa programs; migration agents; representatives of foreign governments; the Ministerial Advisory Council on Skilled Migration; and government departments and agencies.
9. A Regulation Impact Statement has been prepared in accordance with advice from the Office of Best Practice Regulation (OBPR). The OBPR Reference number is 21946. Under section 42 of the Legislation Act 2003, the instrument is subject to disallowance and therefore a Statement of Compatibility with Human Rights has been provided.
10. The Instrument commences on 18 March 2018.

Statement of Compatibility with Human Rights

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

IMMI 18/041 Minimum Salary Levels for the Subclass 457 – Temporary Business (Long Stay) Visa) Repeal Instrument 2018

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 Legislative Instrument

The Migration Act 1958 provides for the requirement for foreign nationals to hold a visa to enter and remain in Australia. Detailed requirements for applying for visas, sponsorship, nomination and provisions for grant are set out in the Migration Regulations 1994 (Migration Regulations).  The Migration Regulations allow further requirements to be specified by instrument. 

The instrument is part of a broad package of reforms for the employer sponsored skilled visa programs, announced by the Government on 18 April 2017. The Department of Home Affairs has engaged with external stakeholders since the announcement in developing the policy settings and considered feedback received.

This Legislative Instrument repeals IMMI 09/109 ‘Minimum salary levels for the subclass 457 – Temporary Business (Long Stay) Visa’. Instrument IMMI 09/109 operated to specify certain matters under:

-         Subregulation 2.79(3A). This regulation is being repealed and replaced by new 2.79(3)(a) to (d) as part of the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018. Therefore the reference to 2.79(3A) in IMMI 09/109 will be obsolete from 18 March 2018.

Human rights implications

As this Legislative Instrument makes amendments that are technical in nature and repeals IMMI 09/109 which contains regulations that are or will be redundant, it does not engage any of the human rights enunciated in the seven core international human rights treaties.

Conclusion

This Legislative Instrument is compatible with human rights.

The Hon Alan Tudge MP, Minister for Citizenship and Multicultural Affairs