EXPLANATORY STATEMENT
Migration Regulations 1994
Migration (IMMI 18/086: Agreements or Arrangements which are not Relevant Agreements for the Purposes of the Government Agreement Stream of the Subclass 403 (Temporary Work (International Relations) visa)) Instrument 2018
(paragraph (d) of the definition of ‘relevant agreement’ in clause 403.111 of Schedule 2)
- This instrument is made under paragraph (d) of the definition of ‘relevant agreement’ in clause 403.111 of Schedule 2 to the Migration Regulations 1994 (Regulations).
- The instrument repeals IMMI 12/084 (F2012L02215) made under clause 403.111 of Schedule 2 to the Regulations 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.
- Clause 403.111 of the Regulations provides a definition of ‘relevant agreement’ for the purposes of the Subclass 403 (Temporary Work (International Relations)) visa. In particular, this definition relates to the criteria for grant of a visa under the Government Agreement stream.
- This instrument operates for the Minister to specify, under paragraph (d) of the definition of ‘relevant agreement’, agreements or arrangements, or types of agreements or arrangements, which are not ‘relevant agreements’ for the purposes of meeting the criteria to grant a Subclass 403 (Temporary Work (International Relations)) visa.
- As part of the 1 July 2018 Pacific Labour Mobility Changes, the Pacific Labour Scheme was established to enable residents of Pacific Island Countries to undertake low and semi-skilled work in rural and regional Australia. To facilitate this scheme, the Migration Amendment (Pacific Labour Scheme) Regulations 2018 inserted the Pacific Labour Scheme stream into the Subclass 403 (Temporary Work (International Relations)) visa.
6. The Pacific Labour Scheme has a number of associated Government agreements, between Australia and Kiribati, Tuvalu and Nauru. The purpose of this instrument is to exclude these Government Agreements from the definition of ‘relevant agreement’ in clause 403.111 of the Regulations. This exclusion will ensure that applicants seeking to meet the criteria for a Subclass 403 (Temporary Work (International Relations)) visa, who are part of the Pacific Labour Scheme, will be assessed against the criteria for the Pacific Labour Scheme stream, and not the criteria for the Government Agreement stream.
7. Consultation was undertaken before the instrument was made with the Department of Jobs and Small Business and the Department of Foreign Affairs and Trade.
8. The Office of Best Practice Regulation has advised that a Regulation Impact Statement (RIS) is not required. The OBPR Reference is 23669.
9. 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.
10. The instrument IMMI 18/086 commences immediately after the commencement of the Migration Amendment (Pacific Labour Scheme) Regulations 2018.
Overview
The Migration (IMMI 18/086: Agreements or Arrangements which are not Relevant Agreements for the Purposes of the Government Agreement Stream of the Subclass 403 (Temporary Work (International Relations) visa)) Instrument 2018, made under the Migration Regulations 1994, was enacted to address a specific gap in the visa application process for the Subclass 403 (Temporary Work (International Relations)) visa. This instrument was introduced by the Minister for Immigration and Border Protection to ensure that applicants participating in the Pacific Labour Scheme are assessed against the appropriate criteria. The Pacific Labour Scheme, established on 1 July 2018, facilitates low and semi-skilled work for residents of Pacific Island Countries in rural and regional Australia. By excluding the government agreements associated with the Pacific Labour Scheme from the definition of 'relevant agreement', this instrument ensures that applicants under the scheme are evaluated based on the specific criteria for the Pacific Labour Scheme stream rather than the general Government Agreement stream. The instrument was made in consultation with relevant departments and is exempt from disallowance.
Scope and Application
The Migration (IMMI 18/086) instrument is designed to amend the Migration Regulations 1994, specifically addressing the definition of 'relevant agreement' as it pertains to the Subclass 403 (Temporary Work (International Relations)) visa. This instrument applies to applicants for the Subclass 403 visa, particularly those who are part of the Pacific Labour Scheme, which was introduced as part of the 1 July 2018 Pacific Labour Mobility Changes. The scheme enables residents of Pacific Island Countries to undertake low and semi-skilled work in rural and regional Australia, and it operates under specific government agreements between Australia and Kiribati, Tuvalu, and Nauru. The instrument excludes these government agreements from the definition of 'relevant agreement' in clause 403.111 of the Regulations, ensuring that visa applicants are assessed against the criteria specific to the Pacific Labour Scheme stream rather than the Government Agreement stream. This instrument operates under the authority of the Minister for Immigration and Border Protection, as provided in the Migration Act 1958, and it is made in accordance with the Acts Interpretation Act 1901, which allows for the repeal and amendment of existing instruments.
Key Provisions
The primary provisions of this instrument, specifically IMMI 18/086, are to clarify and exclude certain agreements from the definition of ‘relevant agreement’ under clause 403.111 of the Migration Regulations 1994 (Regulations) (s.6). This exclusion pertains to Government agreements established under the Pacific Labour Scheme, which was introduced to facilitate the employment of residents from Pacific Island Countries in Australia. The instrument ensures that visa applicants under this scheme are assessed against the specific criteria of the Pacific Labour Scheme stream, rather than the general Government Agreement stream (s.6).
The instrument imposes obligations on the Minister for Home Affairs to specify agreements or arrangements that do not qualify as ‘relevant agreements’ for the purpose of granting a Subclass 403 (Temporary Work (International Relations)) visa under the Government Agreement stream (s.6). Additionally, it requires that any applicants under the Pacific Labour Scheme be evaluated against the criteria specific to that scheme (s.6). The instrument also mandates consultation with relevant departments, including the Department of Jobs and Small Business and the Department of Foreign Affairs and Trade, before its implementation (s.7).
Failure to comply with the provisions of this instrument could lead to legal consequences, although specific offences, penalties, or consequences are not detailed in the explanatory statement. The instrument is exempt from disallowance under section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015, and therefore, a Statement of Compatibility with Human Rights is not required (s.9). The instrument IMMI 18/086 comes into effect immediately after the commencement of the Migration Amendment (Pacific Labour Scheme) Regulations 2018 (s.10).