Migration (International trade obligations relating to labour market testing – India-Australia Economic Cooperation and Trade Agreement) Amendment Determination (LIN 22/105) 2022

Administered by Department of Home Affairs

Legislation au F2022L01495 Not in force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

Issued by authority of the Minister for Immigration, Citizenship and Multicultural Affairs

Migration Act 1958

Migration (International trade obligations relating to labour market testing – India-Australia Economic Cooperation and Trade Agreement) Amendment Determination (LIN 22/105) 2022

1                The instrument, Departmental reference LIN 22/105, is made under subsection 140GBA(2) of the Migration Act 1958 (the Act). 

2                The instrument amends Migration (International trade obligations relating to labour market testing) Determination (LIN 21/075) 2021 (LIN 21/075) in accordance with subsection 33(3) of the Acts Interpretation Act 1901.  That subsection provides that a power to make a legislative instrument includes a power to amend or repeal that instrument in the same manner, and subject to the same conditions, as the power to make the instrument.

3                The instrument commences after the instrument is registered and Schedule 1 to the Customs Amendment (India-Australia Economic Cooperation and Trade Agreement Implementation) Act 2022 commences, and is enacted as a legislative instrument for the purposes of the Legislation Act 2003 (the Legislation Act).  

Purpose

4                Section 140GBA of the Act sets out a condition for labour market testing that needs to be satisfied by an approved work sponsor in a prescribed class who nominates a  proposed occupation in certain circumstances (see paragraph 140GB(2)(a) of the Act). Subsection 140GBA(1) provides that the labour market testing condition applies to a nomination by a person if:

  • the person is, or has applied to be, in a class of approved work sponsors (paragraph 140GBA(1)(a)); and
  • the person nominates a proposed occupation and a particular position, associated with the nominated occupation, that is to be filled by a visa applicant (including proposed applicants) or a visa holder identified in the nomination (paragraph 140GBA(1)(b)); and
  • it would not be inconsistent with any international trade obligation of Australia determined in a legislative instrument made under subsection 140GBA(2) to require the person to satisfy the labour market testing condition, in relation to the nominated position (paragraph 140GBA(1)(c)).

5                The purpose of the instrument is to determine Australia’s obligations under international trade agreements under subsection 140GBA(2) of the Act, to give domestic effect to those obligations for the purposes of applying the labour market testing condition.

6                The international trade obligations are determined for subsection 140GBA(2) in LIN 21/075.  The instrument amends LIN 21/075 to insert one additional international trade agreement, namely the India Australia Economic Cooperation and Trade Agreement (IAECTA). The IAECTA is a new international trade agreement made between Australia and India.

7                The Customs Amendment (India-Australia Economic Cooperation and Trade Agreement Implementation) Act 2022 amends the Customs Act 1901 (the Customs Act) to implement the IAECTA. To give effect to the preferential entry of goods under the IAECTA, the amendments to the Customs Act provide rules for determining whether goods are originating goods to enable goods that satisfy the rules of origin to enter Australia at preferential rates of customs duty.

Consultation

8                Consultation was undertaken with the Department of Foreign Affairs and Trade.  No concerns were raised with giving domestic effect to Australia’s commitments under IAECTA for applying the labour market testing condition.

9                The Office of Best Practice Regulation (OBPR) was also consulted and considered that the instrument dealt with matters of a machinery nature and no regulatory impact statement was required. The OBPR reference number is OBPR22-02319.

Details of the instrument

10            Section 1 sets out the name of the instrument.

11            Subsection 2(1) provides that the instrument commences on the later of the day after this instrument is registered and the day on which Schedule 1 to the Customs Amendment (India-Australia Economic Cooperation and Trade Agreement Implementation) Act 2022 (amendment) commences. Subsection 2(2) provides that this instrument will not commence if the amendment to the Customs Act does not commence. The effect of this provision is that the commencement of the instrument is tied to the day on which the IAECTA enters into force.

12            Section 3 provides that Schedule 1 amends Migration (International trade obligations relating to labour market testing) Determination (LIN 21/075) 2021.

13            Schedule 1 outlines the insertion to be made to section 5 of the Migration (International trade obligations relating to labour market testing) Determination (LIN 21/075) 2021. Specifically, the ‘India-Australia Economic Cooperation and Trade Agreement (IAECTA)’ is added after paragraph 5(f) as paragraph 5(fa).

Parliamentary scrutiny etc. 

14            The instrument is exempt from disallowance under section 42 of the Legislation Act. This is because it is an instrument (other than a regulation) made under Part 2 of the Act, which is specified in subitem 20(a) of the table in section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015. 

15            The instrument was made by the Minister for Immigration, Citizenship and Multicultural Affairs, in accordance with subsection 140GBA(2) of the Act.

Overview

The Migration (International trade obligations relating to labour market testing – India-Australia Economic Cooperation and Trade Agreement) Amendment Determination (LIN 22/105) 2022, made under the Migration Act 1958, aims to address the need to incorporate Australia's international trade obligations into domestic migration policy. Specifically, this determination amends the Migration (International trade obligations relating to labour market testing) Determination 2021 to include the India-Australia Economic Cooperation and Trade Agreement (IAECTA) as an obligation that must be considered when applying the labour market testing condition for certain visa nominations. This amendment ensures that the labour market testing requirement aligns with Australia's commitments under the IAECTA, thereby facilitating smoother economic and trade relations between the two nations. The determination was enacted by the Minister for Immigration, Citizenship and Multicultural Affairs and is intended to give effect to Australia's obligations under the international trade agreement for the purposes of applying the labour market testing condition.

Scope and Application

The Migration (International trade obligations relating to labour market testing – India-Australia Economic Cooperation and Trade Agreement) Amendment Determination (LIN 22/105) 2022 amends the Migration (International trade obligations relating to labour market testing) Determination 2021 to include the India-Australia Economic Cooperation and Trade Agreement (IAECTA) as an international trade agreement under subsection 140GBA(2) of the Migration Act 1958. This amendment applies to approved work sponsors who nominate proposed occupations and particular positions to be filled by visa applicants or holders, ensuring compliance with Australia's international trade obligations. The instrument’s commencement is contingent upon the registration of the amendment and the commencement of the Customs Amendment (India-Australia Economic Cooperation and Trade Agreement Implementation) Act 2022, thereby aligning the migration obligations with the trade agreement's implementation. The instrument exempts itself from disallowance under the Legislation Act, as it falls under specified conditions outlined in the Legislation (Exemptions and Other Matters) Regulation 2015.

Key Provisions

The Migration (International trade obligations relating to labour market testing – India-Australia Economic Cooperation and Trade Agreement) Amendment Determination (LIN 22/105) 2022 amends the Migration (International trade obligations relating to labour market testing) Determination (LIN 21/075) 2021 to include the India-Australia Economic Cooperation and Trade Agreement (IAECTA) as a new international trade agreement under subsection 140GBA(2) of the Migration Act 1958 (the Act) (Schedule 1). This amendment is made to give effect to Australia’s obligations under the IAECTA regarding labour market testing in the context of the migration of workers between Australia and India. The determination specifies that the IAECTA will be incorporated into the list of agreements that influence the application of the labour market testing condition for certain nominated occupations (section 1 and Schedule 1). The Act imposes obligations on approved work sponsors who nominate a proposed occupation in certain circumstances. Specifically, under section 140GBA(1), an approved work sponsor must satisfy the labour market testing condition if their nomination does not conflict with any international trade obligations determined under subsection 140GBA(2). The insertion of the IAECTA into the determination ensures that the obligations under this trade agreement are recognised and adhered to when applying the labour market testing condition. Approved work sponsors must ensure that their nominations comply with both the Act and the IAECTA, which includes understanding and adhering to the trade agreement’s provisions regarding labour market testing (section 140GBA). Failure to comply with the labour market testing condition as influenced by the IAECTA may result in legal consequences. Under the Migration Act, breaches of the labour market testing condition can lead to the nomination being invalid, which could result in the visa application being refused or the visa being cancelled. While specific penalties are not detailed in the explanatory statement, breaches of the Act generally attract penalties such as fines and potential imprisonment, with the severity of the penalty depending on the nature and seriousness of the breach. The instrument itself is exempt from disallowance and thus carries the full force of law upon commencement (subsection 42 of the Legislation Act). In summary, the Amendment Determination (LIN 22/105) 2022 integrates the IAECTA into the existing framework of international trade obligations that affect labour market testing under the Migration Act. Approved work sponsors must ensure their activities are consistent with both the Act and the IAECTA, and failure to do so may result in serious legal repercussions, including potential fines and imprisonment.

Legal classification tags

Area of Law
Immigration & Refugee Law
Instrument
Statutory Instrument
Concepts
Definitions & Interpretation
Commencement Provisions
Repeal & Amendment
Licensing & Registration

Interactions

Authorises

All Versions

Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.