EXPLANATORY STATEMENT
Issued by the Assistant Minister for Immigration
Migration Regulations 1994
Migration Legislation Amendment (Annual Market Salary Rate) Instrument 2026
The legislative instrument Migration Amendment (Annual Market Salary Rate) Instrument 2026 (departmental reference LIN 26/038) is made under and for the purposes of subregulation 2.72(17) of the Migration Regulations 1994 (the Migration Regulations).
LIN 26/038 is made in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (the Acts Interpretation Act). 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.
LIN 26/038 commences on the day after it is registered on the Federal Register of Legislation. It is a legislative instrument for the purposes of the Legislation Act 2003 (the Legislation Act).
The purpose of LIN 26/038 is to amend the Migration (IMMI 18/033: Specification of Income Threshold and Annual Earnings and Methodology of Annual Market Salary Rate) Instrument 2018 (IMMI 18/033) to provide persons who make a nomination in relation to certain visa subclasses with an alternative method for determining the Australian Market Salary Rate (AMSR) that applies to the nominated position. The relevant visas are:
- Subclass 482 (Skills in Demand) visa (SID);
- Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa (SESR);
- Subclass 186 (Employer Nominated Scheme) visa (ENS);
- Subclass 187 (Regional Sponsored Migration Scheme) visa (RSMS).
The Migration Regulations provide that where a nominee for one of the above visa subclasses will earn less than the specified amount per annum (currently $250,000), the Minister must be satisfied that the nominee will be paid at least the AMSR, excluding any non-monetary benefits. Subregulation 2.72(17) provides that the method for determining the AMSR is to be set out in a legislative instrument. The applicable principal legislative instrument is IMMI 18/033.
Prior to amendment by LIN 26/038, IMMI 18/033 set out four methods for determining the AMSR, depending on whether a Fair Work instrument, state industrial instrument or transitional instrument applied in relation to the occupation, and further depending on whether there was an equivalent Australian worker. At a high level, the three methods were as follows:
- where there is a Fair Work instrument, state industrial instrument or transitional instrument that applies to the occupation, the AMSR was determined to be the amount that is paid to an equivalent Australian worker under that instrument, or the amount that would be paid to that equivalent Australian worker if one does not exist;
- where there is no Fair Work instrument, state industrial instrument or transitional instrument but there is an equivalent Australian worker, the AMSR was determined to be the amount that is paid to that worker, as evidenced by relevant employment documents;
- where there is no Fair Work instrument, state industrial instrument or transitional instrument and there is no equivalent Australian worker, the AMSR was determined to be the amount that would be paid to an equivalent Australian worker, as evidenced by relevant information
‘Relevant employment documents’ and ‘relevant information’ are defined in section 4 of IMMI 18/033. These definitions are unaffected by the amendments in LIN 26/038.
Regardless of the way in which the AMSR is determined, the Migration Regulations require the AMSR to be above a relevant threshold. For a SESR or RSMS visa, the AMSR must be at least the temporary skilled migration income threshold (currently $76,515). For a SID or ENS visa, the AMSR must be at least the core skills income threshold (currently $76,515). For SID visa applications in the specialist skills stream, a higher threshold (currently $141,210) applies.
LIN 26/038 amends IMMI 18/033 to allow flexibility in determining the AMSR in circumstances where there is a relevant Fair Work instrument, state industrial instrument or transitional instrument. The amendments allow the person making the nomination to use an alternative methodology for determining the AMSR, based on either relevant employment documents where there is an equivalent Australian worker, or on relevant information where there is not an equivalent Australian worker. In either scenario, the alternative methodology for determining the AMSR may only be utilised where the resulting amount is greater than the amount that is paid (or would be paid) to an equivalent Australian worker under the Fair Work instrument.
This added flexibility allows for a more accurate determination of the AMSR that is consistent with prevailing Australian labour market wages and conditions, and which better reflects the diversity in employment situations. This is because Fair Work instruments, such as modern awards, are designed to outline minimum pay rates and conditions of employment.
For reference, the following table summarises the new methods for determining the AMSR, as amended by this instrument:
| Where there is an equivalent Australian worker | Where there is not an equivalent Australian worker |
Where there is a Fair Work instrument, state industrial instrument or transitional instrument | AMSR will be determined by the instrument or alternatively by relevant employment documents*, provided the amount in the employment documents is not less than the amount in the Fair Work instrument. | AMSR will be determined by the instrument or alternatively by relevant information*, provided the amount in that information is not less than the amount in the Fair Work instrument. |
Where there is not a Fair Work instrument, state industrial instrument or transitional instrument | AMSR will be determined by the relevant employment documents*. | AMSR will be determined by the relevant information*. |
*as defined at section 4 of IMMI 18/033
Consultation was undertaken with the Department of Employment and Workplace Relations in relation to the development of the amendments in LIN 26/038.
The amendments will commence on the day after this instrument is registered on the Federal Register of Legislation.
The amendments will apply in relation to all applications for nomination made on or after the day the amendments of the principal instrument commence. The amendments will also apply in relation to nomination applications made before commencement but not decided at that time. This ensures that the amendments apply in relation to on-hand nomination applications as well as new applications. The amendments enable, but do not obligate, persons making a nomination to provide an alternative method of determining the AMSR. They are therefore beneficial in nature, in circumstances where the earnings in the Fair Work instrument would not otherwise be above the relevant income threshold.
The instrument is a legislative instrument for the purposes of the Legislation Act.
The instrument is subject to disallowance under section 42 of the Legislation Act. A Statement of Compatibility with Human Rights has been completed in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The overall assessment is that the Amendment Regulations are compatible with human rights. The Statement is included at Attachment A.
Further details of the instrument are set out in Attachment B.
Attachment A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration Legislation Amendment (Annual Market Salary Rate) Instrument 2026
This Disallowable 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 Disallowable Legislative Instrument
The Migration Legislation Amendment (Annual Market Salary Rate) Instrument 2026 (the Instrument) amends the Migration (IMMI 18/033: Specification of Income Threshold and Annual Earnings and Methodology of Annual Market Salary Rate) Instrument 2018 (IMMI 18/033) to provide persons making for nomination of a Subclass 482 (Skills in Demand) visa (SID visa), Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa (SESR visa), Subclass 186 (Employer Nomination Scheme) visa (ENS visa), or Subclass 187 (Regional Sponsored Migration Scheme) visa (RSMS visa) with an alternative method for determining the Annual Market Salary Rate (AMSR) that applies to the nominated position.
Subregulation 2.72(15) of the Migration Regulations 1994 (Migration Regulations) provides that where a nominee for a SID visa (and which also applies to nominees for an ENS or RSMS visa) will earn less than the specified amount per annum (currently $250,000), the Minister (or a delegate) must be satisfied that, among other requirements, the nominee will be paid at least the AMSR, excluding any non-monetary benefits. Subregulation 2.72(17) provides that the method for determining the AMSR is to be set out in a legislative instrument. The relevant principal legislative instrument is IMMI 18/033.
Subregulation 2.72C(15) of the Migration Regulations sets out the same requirement for the SESR visa, with subparagraph 2.72C(15)(c) providing that the AMSR is to be determined in accordance with the instrument made under subregulation 2.72(17), being IMMI 18/033.
Additionally, the minimum thresholds set out at subparagraph 2.72(15)(d) and 2.72C(15)(d) of the Migration Regulations continue to apply. For a SID visa, subparagraph 2.72(15)(d) requires that the AMSR be at least the specialist skills income threshold (currently $141,210) or the core skills income threshold (currently $76,515) depending on which SID visa stream the application relates to. For a Subclass 494 visa or RSMS, subparagraph 2.72C(15)(d) requires that the AMSR be at least the temporary skilled migration income threshold (currently $76,515).
Prior to amendment, IMMI 18/033 set out four methods for determining the AMSR, dependent on whether a Fair Work instrument, state industrial instrument or transitional instrument applied to the position, and further depending on whether there was an equivalent Australian worker. At a high level, the three methods were as follows:
- where there is a Fair Work instrument, state industrial instrument or transitional instrument that applies to the occupation, the AMSR was determined to be the amount that is paid to an equivalent Australian worker under that instrument, or the amount that would be paid to that equivalent Australian worker if one does not exist; or
- where there is no Fair Work instrument, state industrial instrument or transitional instrument but there is an equivalent Australian worker, the AMSR was determined to be the amount that is paid to that worker, as evidenced by relevant employment documents; or
- where there is no Fair Work instrument, state industrial instrument or transitional instrument and there is no equivalent Australian worker, the AMSR was determined to be the amount that would be paid to an equivalent Australian worker, as evidenced by relevant information
This instrument amends IMMI 18/033 to allow flexibility in determining the AMSR in circumstances where there is a relevant Fair Work instrument, state industrial instrument or transitional instrument. In those circumstances, the person may instead utilise an alternative method for determining the AMSR, based on either relevant employment documents where there is an equivalent Australian worker, or on or relevant information where there is not an equivalent Australian worker.
In either scenario, the alternative method for determining the AMSR may only be utilised where the resulting amount is greater than the amount that is paid (or would be paid) to an equivalent Australian worker under the Fair Work instrument, state industrial instrument or transitional instrument.
The skilled visa program is designed to be flexible and responsive to labour market conditions. Providing an alternative method for determining the AMSR allows for a more accurate determination of the AMSR that is consistent with prevailing Australian labour market wages and conditions, and which better reflects the diversity of employment situations.
The amendments will support the Government in achieving the program’s intended outcomes by ensuring migrant workers are paid fairly and can support themselves while in Australia.
Together with the relevant skilled income thresholds, these changes will help ensure migrant worker wages do not undercut the Australian labour market.
Human rights implications
This Disallowable Legislative Instrument positively engages the following rights:
- the right to the enjoyment of just and favourable conditions of work under Article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and
- the right to an adequate standard of living under Article 11(1) of the ICESCR.
Just and favourable conditions of work
Article 7 of the ICESCR provides:
The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:
(a) Remuneration which provides all workers, as a minimum, with:
(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;
(ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant;
(b) Safe and healthy working conditions;
(c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;
(d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays.
Amending IMMI 18/033 to allow flexibility in determining the AMSR in circumstances where there is a relevant Fair Work instrument, state industrial instrument or transitional instrument, allows for a more accurate determination of the AMSR that is consistent with prevailing Australian labour market wages and conditions, and which better reflects the diversity of employment circumstances s.
Ensuring that the AMSR is more accurate to Australian labour market wages and conditions supports this right by helping to ensure that migrant workers receive fair wages at the accurate market rate and are not paid less than an equivalent Australian worker.
These amendments will work together with other provisions to help reduce the risk of migrant worker exploitation by ensuring migrant workers are paid fairly and are adequately able to support themselves whilst living in Australia. They will also ensure migrant worker wages do not undercut the Australian labour market.
The amendments in this Disallowable Legislative Instrument therefore promote the right to fair conditions of work for skilled migrants under Article 7 of the ICESCR.
Adequate standard of living
Article 11(1) of the ICESCR provides:
The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.
Amending IMMI 18/033 to allow flexibility in determining the AMSR ensures that skilled migrant workers are paid fairly and in a way that is consistent with labour market wages and conditions, in turn, allowing migrant workers to maintain an adequate standard of living for themselves and their families. This promotes the right to an adequate standard of living for skilled migrant workers under Article 11(1) of the ICESCR.
Conclusion
This Disallowable Legislative Instrument is compatible with human rights as it promotes the right to just and favourable conditions of work and the right to an adequate standard of living for skilled migrant workers.
The Hon Matt Thistlethwaite MP
Assistant Minister for Immigration
Attachment B
Details of the Migration Legislation Amendment (Annual Market Salary Rate) Instrument 2026
Section 1 – Name
This section provides that the title of the instrument is the Migration Legislation Amendment (Annual Market Salary Rate) Instrument 2026.
Section 2 – Commencement
This section provides that the instrument commences on the day after it is registered on the Federal Register of Legislation.
Section 3 – Authority
This section provides that the instrument is made under the Migration Regulations 1994. Specifically, this instrument is made under and for the purposes of subregulation 2.72(17) of the Regulations.
Section 4 – Schedules
This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Schedule 1 – Amendments
Migration (IMMI 18/033: Specification of Income Threshold and Annual Earnings and Methodology of Annual Market Salary Rate) Instrument 2018
Item 1 – Section 4 (definition of transitional instrument)
This item makes a technical amendment of the definition of transitional instrument, in section 4 of the principal instrument, to refer to item 2 of Schedule 2 to the Fair Work (Transitional Provisions and Consequential Amendments) Act. The definition of transitional instrument in the principal instrument continues to attract the same meaning as it did before the amendment; however, the amendment ensures, consistent with conventional drafting practice, that the definition refers to the item (not “section”) of Schedule 2 to the Act, which includes the defined term “transitional instrument”.
Item 2 – Sections 7 and 8
This item substitutes section 7 and section 8 of the principal instrument. These sections set out the method for determining the AMSR; the effect of the amendment is to set out new methods in new (substituted) sections 7 and 8 for determining the AMSR.
The effect of the amendment is that where a Fair Work instrument (such as an award), a state industrial instrument or a transitional instrument applies to the nominated position, the person may (but is not required to) determine the AMSR based on the earnings set out in that instrument.
If there is an equivalent Australian worker in the position, the person making the nomination may determine the AMSR with reference to employment documents (as defined in the instrument) that demonstrate the earnings paid to an equivalent Australian worker. In the absence of an equivalent Australian worker, the person may determine the AMSR with reference to relevant information (as defined in the instrument) to determine the earnings that would be paid to an equivalent Australian worker.
Regardless of the method for determination, the person must demonstrate that the AMSR determined by employment documents or relevant information must be greater than the earnings set out in the Fair Work instrument, state industrial instrument or transitional instrument.
Item 3– At the end of the instrument
This item sets out the application provisions for the amendments in items 1 and 2 in relation to the principal instrument. The amendments apply in relation to applications made on or after the commencement of the amending instrument. They also apply in relation to applications that were made before the amendments commenced, but which have not been decided (finalised) before that time.
The amendments allow the person making the nomination to use an alternative methodology for determining the AMSR, based on either relevant employment documents where there is an equivalent Australian worker, or on relevant information where there is not an equivalent Australian worker. In either scenario, the alternative methodology for determining the AMSR may only be utilised where the resulting amount is greater than the amount that is paid (or would be paid) to an equivalent Australian worker under the Fair Work instrument. This added flexibility allows for a more accurate determination of AMSR that is consistent with prevailing Australian labour market wages and conditions, and which better reflects the diversity in employment situations. This is because Fair Work instruments, such as modern awards, are designed to outline minimum pay rates and conditions of employment.