Migration Legislation Amendment (Health Workforce Certificates Measures No. 1) Instrument (LIN 20/273) 2020

Administered by Department of Home Affairs

Legislation au F2020L01544 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Migration Regulations 1994

Migration Legislation Amendment (Health Workforce Certificates Measures No. 1) Instrument (LIN 20/273) 2020

(subregulations 5.19(8), (11) and (13))

  1. The instrument, LIN 20/273, is made under subregulations 5.19(8), (11) and (13) of the Migration Regulations 1994 (the Regulations).
  2. The instrument amends Migration (LIN 19/047: Specification of Occupations—Subclass 187 Visa) Instrument 2019 (F2019L00276) and Migration (LIN 19/049: Specification of Occupations and Assessing Authorities—Subclass 186 Visa) Instrument 2019 (F2019L00275) in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (the AIA). Subsection 33(3) of the AIA 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.
  3. The instrument operates to amend LIN 19/047 and LIN 19/049 to change the definition of Health Workforce Certificate (HWC).
  4. The purpose of the instrument is to update the definition of HWC in LIN 19/047 and LIN 19/049. As a result of changes to LIN 19/048 and LIN 19/219 to introduce the Health Workforce Exemption Certificate (HWEC), the definition of HWC was amended in LIN 19/047 and LIN 19/049. The change to the definition of HWC in LIN 19/047 and LIN 19/049 by this instrument, ensures that the definition is the same as the definition of HWC in LIN 19/048 and LIN 19/219.
  5. The instrument makes the following changes:
    1. LIN 19/047 –
      1.  simplifying the definition of HWC in section 4 of the instrument. The instrument removes paragraph (c) of the definition of HWC and inserts a new health workforce certifiers definition in section 4 of the instrument, maintaining the same certifiers with one small change;
      2. changing the name of Rural Health West Ltd from Western Australian Centre for Remote and Rural Medicine Ltd reflecting a change in the organisation’s name (ABN 29 123 188 367);
      3. removing requirements in paragraph (a) of the definition of HWC;
      4. adding a new subsection 6(4) to simplify the explanation of what is required in a HWC;
      5. removing paragraph (b) of the definition of HWC and inserting the same requirement into new subsection 6(3), which simplifies the explanation of what is required in a HWC.
    2. LIN 19/049 –
      1. removing paragraph (c) of the definition of HWC and inserting a new definition of health workforce certifiers in section 4 of the instrument, maintaining the same certifiers with one small change;
      2. changing the name of Rural Health West Ltd from Western Australian Centre for Remote and Rural Medicine Ltd reflecting a change in the organisation’s name (ABN 29 123 188 367);
      3. removing the requirements in paragraph (a) of the definition of HWC and adding those requirements to new subsection 8(2) to simplify the explanation;
      4. inserting new subsection 8(2) which requires a HWC  to specify which occupation the certificate is for;
      5. removing the requirement in paragraph (b) of the definition of HWC for a HWC to specify a particular occupation, to avoid duplicaiton with new subsection 8(2).
  6. The amendments do not alter what constitutes a HWC or the requirement for an applicant for an occupation of General Practitioner, Resident Medical Officer, or Medical Practitioners (not elsewhere classified) to present a HWC to the Department.
  7. Consultation was undertaken prior to the making of the instrument with the Department of Health.
  8. The instrument commences on 16 December 2020. The amendments to:
    1. LIN 19/047 apply in relation to an application for approval of a nomination that is made on or after 16 December 2020; and
    2. LIN 19/219 apply in relation to an application for approval of a nomination that is made on or after 16 December 2020.
  9. The Office of Best Practice Regulation (OBPR) has advised that a Regulatory Impact Statement is not required (OBPR Reference 43170).
  10. 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.

 

Overview

The Migration Legislation Amendment (Health Workforce Certificates Measures No. 1) Instrument 2020 was introduced to address the need to update the definition of the Health Workforce Certificate (HWC) in the Migration Regulations 1994. Enacted by the Australian Government, the instrument aims to harmonise the definition of HWC across various migration instruments, following the introduction of the Health Workforce Exemption Certificate (HWEC). This change ensures consistency in the requirements for health workforce certifications across different visa categories, simplifying the process for applicants by removing redundant requirements and clarifying the definitions. The instrument operates under subsection 33(3) of the Acts Interpretation Act 1901, which allows for amendments to existing regulations. Consultation with the Department of Health was undertaken before the instrument's implementation, which commenced on 16 December 2020.

Scope and Application

The Migration Legislation Amendment (Health Workforce Certificates Measures No. 1) Instrument (LIN 20/273) applies to the Migration Regulations 1994, specifically targeting the amendments to the Migration (LIN 19/047: Specification of Occupations—Subclass 187 Visa) Instrument 2019 and the Migration (LIN 19/049: Specification of Occupations and Assessing Authorities—Subclass 186 Visa) Instrument 2019. This instrument is pertinent to the definitions and requirements of Health Workforce Certificates (HWC) for specific occupations under the subclass 187 and subclass 186 visas. The changes are aimed at aligning the definition of HWC across different instruments to ensure consistency, particularly following the introduction of the Health Workforce Exemption Certificate (HWEC) in other instruments. The amendments simplify the definition of HWC, remove redundant requirements, and clarify the conditions and explanations required in the certificate. These amendments do not change the fundamental requirements for HWC but are designed to streamline and standardise the process for applicants seeking nomination for occupations such as General Practitioners, Resident Medical Officers, or Medical Practitioners (not elsewhere classified). The instrument operates on a Commonwealth level, affecting those entities and individuals involved in the visa application process for the specified occupations within Australia. The instrument is effective from 16 December 2020, applying to applications for nomination made on or after this date.

Key Provisions

The Migration Regulations 1994, through the Migration Legislation Amendment (Health Workforce Certificates Measures No. 1) Instrument (LIN 20/273), amends the Migration (LIN 19/047: Specification of Occupations—Subclass 187 Visa) Instrument 2019 and the Migration (LIN 19/049: Specification of Occupations and Assessing Authorities—Subclass 186 Visa) Instrument 2019 (subregulations 5.19(8), (11) and (13)). This amendment is aimed at updating the definition of the Health Workforce Certificate (HWC) to align with the Health Workforce Exemption Certificate (HWEC) as specified in LIN 19/048 and LIN 19/219. The changes simplify the definition of HWC and update the name of one of the certifiers from Western Australian Centre for Remote and Rural Medicine Ltd to Rural Health West Ltd. The amendments ensure that the definition of HWC in these instruments remains consistent across the various legislative instruments. The amendments impose specific obligations on applicants for certain medical occupations, such as General Practitioner, Resident Medical Officer, or Medical Practitioners (not elsewhere classified), requiring them to present a HWC when applying for a nomination. The HWC must now specify which occupation it is for, a requirement that was previously implied but has now been explicitly stated. Additionally, the definition of health workforce certifiers has been updated to reflect the name change of one of the certifiers and to streamline the explanation of the requirements for a HWC. These changes are designed to ensure clarity and consistency in the application process for these occupations. Failure to comply with the requirements of the amended instruments may result in the rejection of a nomination application, as the HWC must meet the specific criteria outlined in the instruments. There are no explicit penalties stated within the instrument itself, but the non-compliance could lead to administrative consequences, such as the denial of a nomination, which in turn could impact the applicant’s eligibility for the relevant visa subclass. The consequences of non-compliance are primarily administrative, as the focus of the instrument is to clarify and update the definition and requirements of a HWC. The instrument also ensures that it 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. This exemption means that the instrument can take effect without the need for parliamentary approval, streamlining the legislative process for these amendments. The instrument commenced on 16 December 2020, and the changes apply to applications made on or after this date.

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Immigration & Refugee Law
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