EXPLANATORY STATEMENT
Migration Regulations 1994
Migration (IMMI 18/082: Specification of income threshold and annual earnings) Repeal Instrument 2018
(Paragraph 2.79(1A)(b))
- Instrument IMMI 18/082 is made under paragraph 2.79(1A)(b) of the Migration Regulations 1994 (the Regulations).
2. The instrument repeals IMMI 13/028 (F2013L01231). IMMI 13/028 is repealed:
- under paragraph 2.79(1A)(b) 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
b. subsequent to the repeal of paragraph 2.72(10)(cc) and subregulation 2.72(10AB) of the Regulations by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018.
3. The purpose of the instrument is to repeal IMMI 13/028, as it is no longer required. As at 18 March 2018, the annual earnings for the purposes of 2.79(1A)(b) are now specified in instrument IMMI 18/033.
4. This instrument operates to reflect the changes to the Regulations by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018.
5. The repeal of IMMI 13/028 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. Some changes to settings have been machinery, and have not been the subject of consultation.
6. These reforms were also informed by earlier reviews including: the 2014 Independent Review into the integrity of the 457 program; 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.
7. A Regulatory Impact Statement has been prepared in accordance with advice from the Office of Best Practice Regulation (OBPR Reference: 21946).
8. Under section 42 of the Legislation Act 2003, this instrument is subject to disallowance and therefore a Statement of Compatibility with Human Rights is included at Attachment A.
9. The instrument, IMMI 18/082, commences on the day after it is registered on the Federal Register of Legislation.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration (IMMI 18/082: Specification of income threshold and annual earnings) 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 Bill/Legislative Instrument
This Legislative Instrument repeals IMMI 13/028. IMMI 13/028 operated to specify the temporary skilled migration income threshold for the purposes of paragraph 2.72(10)(cc) of the Migration Regulations 1994 (the Regulations), and the annual earnings for the purposes of subregulation 2.72(10AB) and paragraph 2.79(1A)(b) of the Regulations. Paragraph 2.72(10)(cc) and subregulation 2.72(10AB) of the Regulations have been repealed by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018. As at 18 March 2018, the annual earnings for the purposes of paragraph 2.79(1A)(b) are now specified in the Legislative Instrument IMMI 18/033.
Human rights implications
The proposed amendments do not engage any of the human rights enunciated in the seven core international human rights treaties. This Legislative Instrument is merely repealing IMMI 13/028 to reflect the repeal of the paragraph 2.72(10)(cc) and subregulation 2.72(10AB), which IMMI 13/028 was made under. The specification of income threshold and annual earnings have not been altered, and are set out in Legislative Instrument IMMI 18/033.
Conclusion
This proposed Legislative Instrument is compatible with human rights as it does not raise any human rights issues.
The Hon Alan Tudge MP, Minister for Citizenship and Multicultural Affairs
Overview
The Migration (IMMI 18/082: Specification of income threshold and annual earnings) Repeal Instrument 2018 was enacted to address the redundancy of the previously established income thresholds under the Migration Regulations 1994. This repeal was necessitated by changes introduced in the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018, which removed the need for the income thresholds specified in IMMI 13/028. The instrument was made under the Migration Regulations 1994 by the Department of Home Affairs, reflecting broader reforms to employer-sponsored skilled visa programs. These reforms were developed in consultation with various stakeholders and informed by several reviews and consultations, including the 2014 Independent Review into the integrity of the 457 program and the 2016 Productivity Commission Inquiry Report: Migrant Intake into Australia. The instrument is subject to disallowance and includes a Statement of Compatibility with Human Rights, affirming that the repeal does not engage any of the human rights enunciated in the core international human rights treaties.
Scope and Application
The Migration (IMMI 18/082: Specification of income threshold and annual earnings) Repeal Instrument 2018 operates under the Migration Regulations 1994, targeting the repeal of IMMI 13/028, which previously specified the temporary skilled migration income threshold and annual earnings for certain migration regulations. This repeal reflects the current legislative framework, particularly following the changes introduced by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018, which removed the need for IMMI 13/028. The repealed instrument was instrumental in specifying thresholds relevant to skilled migration programs but is no longer necessary due to the legislative updates. The instrument is applicable to the Commonwealth of Australia and primarily affects entities and individuals involved in the migration process, including applicants, employers, and migration agents. The repeal aligns with broader reforms aimed at enhancing the integrity and efficiency of the skilled visa programs, informed by various reviews and consultations. The instrument is subject to disallowance, and a Statement of Compatibility with Human Rights is included, affirming its compatibility with international human rights standards.
Key Provisions
The key provisions of the Migration (IMMI 18/082: Specification of income threshold and annual earnings) Repeal Instrument 2018 (referred to as "the instrument") primarily focus on the repeal of IMMI 13/028, which previously specified the temporary skilled migration income threshold and annual earnings for certain purposes under the Migration Regulations 1994 (the Regulations). This repeal is a consequence of broader legislative reforms, specifically the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018, which eliminated the need for IMMI 13/028 by repealing paragraph 2.72(10)(cc) and subregulation 2.72(10AB) of the Regulations. Additionally, the annual earnings for paragraph 2.79(1A)(b) are now specified in IMMI 18/033.
The instrument imposes obligations on those affected by the repealed IMMI 13/028, mandating that they now refer to the updated legislative framework as specified in IMMI 18/033 for determining the annual earnings for the purposes of paragraph 2.79(1A)(b). This change necessitates an understanding and compliance with the new specifications laid out in IMMI 18/033. The repeal also requires stakeholders to adapt to the new regulatory environment, ensuring that their practices and applications align with the current legislative standards.
In terms of penalties and consequences, the instrument itself does not explicitly outline specific offences or penalties for non-compliance with the repealed IMMI 13/028. However, the broader legislative framework, including the Migration Regulations 1994, may include provisions for penalties related to non-compliance with visa and migration regulations. These penalties could include fines, visa cancellations, or other administrative actions. The extent and specifics of these penalties would be determined by the relevant provisions of the Migration Act 1958 and the Migration Regulations 1994, as well as any other applicable laws.
The compatibility statement included with the instrument ensures that the repeal of IMMI 13/028 does not contravene any human rights recognised or declared in the international instruments listed in the Human Rights (Parliamentary Scrutiny) Act 2011. The statement confirms that the repeal does not introduce any new human rights issues and that the changes do not engage any of the core international human rights treaties. This ensures that the legislative changes are in alignment with Australia’s international human rights obligations.