EXPLANATORY STATEMENT
Migration Act 1958
Migration (IMMI 18/059: Period within which labour market testing is required to be undertaken) Instrument 2018
(Subsection 140GBA(4))
- The Instrument, IMMI 18/059, is made under subsection 140GBA(4) of the Migration Act 1958 (Act).
- The instrument repeals IMMI 13/136 (F2013L01953) under subsection 140GBA(4) of the Act and in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (Interpretation Act). Subsection 33(3) of the 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.
- The instrument operates to specify, for the purposes of paragraph 140GBA(3)(a) of the Act, the period within which labour market testing is required to be undertaken.
- The purpose of the instrument is to specify that:
- for nomination applications lodged before 18 June 2018, the period in which labour market testing is required to be undertaken is the 12 month period immediately before the nomination application form is lodged; and
- for a nomination applications lodged on or after 18 June 2018, the period in which labour market testing is required to be undertaken is the 6 month period immediately before the nomination application form is lodged.
- This instrument only applies to nomination applications lodged on or after 18 March 2018.
- The subject of this 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.
- 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.
- 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 10 of the Legislation (Exemption and Other Matters) Regulations 2015 this instrument is not subject to disallowance and therefore a Statement of Compatibility with Human Rights is not required.
- The instrument commences on 18 March 2018.
Overview
The Migration (IMMI 18/059: Period within which labour market testing is required to be undertaken) Instrument 2018, enacted under the Migration Act 1958, was introduced to address the issue of the period within which labour market testing must be conducted for nomination applications in the employer sponsored skilled visa programs. This legislative instrument was made by the Department of Home Affairs, following extensive consultation with a broad range of stakeholders, including businesses, migration agents, and government bodies. The policy objective is to streamline and clarify the labour market testing requirements as part of a broader package of reforms aimed at improving the integrity and efficiency of the skilled migration process in Australia. The instrument specifies that for nomination applications lodged before 18 June 2018, the labour market testing must be undertaken within the 12 months immediately preceding the application, whereas for applications lodged on or after 18 June 2018, the testing must be completed within the 6 months immediately before the application. This change is effective for nomination applications submitted on or after 18 March 2018.
Scope and Application
The IMMI 18/059 Instrument, made under the Migration Act 1958, serves to specify the period within which labour market testing must be undertaken for certain nomination applications. This legislative instrument applies to nomination applications lodged on or after 18 March 2018, and it is part of a broader set of reforms to the employer-sponsored skilled visa programs. For applications submitted before 18 June 2018, labour market testing must be completed within the 12 months immediately preceding the lodging of the nomination application form. Conversely, for applications lodged on or after 18 June 2018, the required period for labour market testing is reduced to six months immediately before the nomination application form is submitted. This reform reflects feedback and consultation with various stakeholders, including businesses, academics, and government bodies, and is aimed at enhancing the integrity and efficiency of the visa programs. The instrument operates nationally, aligning with the overarching jurisdiction of the Commonwealth under the Migration Act 1958.
Key Provisions
The key operative sections of the instrument, IMMI 18/059, pertain to the timing of labour market testing for nomination applications under the Migration Act 1958. Specifically, section 4 of the instrument modifies the periods within which labour market testing must be completed for different types of applications. For nomination applications lodged before 18 June 2018, the testing must occur within the 12 months immediately preceding the application (section 4(1)). For applications lodged on or after 18 June 2018, the testing period is reduced to 6 months immediately prior to the application (section 4(2)). This change applies to nominations submitted on or after 18 March 2018, the date the instrument commenced.
Under this instrument, the primary obligations rest with employers who are sponsoring skilled migrant workers. Employers must ensure that labour market testing is undertaken within the specified period before lodging a nomination application. This requirement aims to verify that the skills of the applicant are not readily available in the Australian labour market, thereby protecting local job opportunities. Employers need to maintain records and evidence of the labour market testing process as part of their application submission to demonstrate compliance with the Act.
The instrument also delineates the consequences of non-compliance with the specified labour market testing periods. Although the instrument itself does not explicitly state penalties, breaches of the Migration Act 1958 can lead to significant civil or criminal penalties. For example, under section 230A of the Act, an employer who knowingly makes a false or misleading statement in a nomination application can face fines of up to $132,000 for a corporation and $26,400 for an individual, or imprisonment for up to 5 years, or both. Furthermore, failure to comply with labour market testing requirements can result in the application being rejected, thereby preventing the nomination and subsequent visa grant for the skilled migrant worker. These potential consequences underscore the importance of adhering to the legislative requirements set forth in the instrument.