EXPLANATORY STATEMENT
Migration Act 1958
Migration (LIN 18/183: Determination of International Trade Obligations relating to Labour Market Testing) Instrument 2018
(Subsection 140GBA(2))
- Instrument LIN 18/183 is made under subsection 140GBA(2) of the
Migration Act 1958 (the Act). - This instrument repeals IMMI 17/109 in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (the 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.
- The instrument operates to determine international trade obligations of Australia for the purposes of paragraph 140GBA(1)(c) of the Act. Paragraph 140GBA(1)(c) provides, in effect, that the labour market testing condition in section 140GBA does not apply to a nomination by an approved sponsor if it would be inconsistent with any international trade obligation of Australia determined in the instrument to require the sponsor to satisfy conditions relating to labour market testing, as defined in subsection 140GBA(7). Subsection 140GBA(2) allows the Minister to determine, by legislative instrument, an obligation of Australia under international law that relates to international trade. An obligation determined by the Minister by legislative instrument includes obligations that may arise under any agreement between Australia and another country (or other countries).
- The purpose of the instrument is to give domestic effect to Australia’s obligations under international trade agreements, to which it is a party, for the purposes of labour market testing. The instrument differs from the previous instrument IMMI 17/109 as it includes the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (TPP-11). The TPP-11 includes obligations of Australia under international law that relate to international trade concerning labour market testing for relevant persons where that persons’ country is firstly, a party to the agreement and who secondly, have ratified the TPP-11 into their domestic legislation. Once ratification has occurred in a signatory country, Australia’s obligation under the TPP-11 to that country arises. The requirement for labour market testing under section 140GBA would then be inconsistent with Australia's obligations under TPP-11.
- The Department of Foreign Affairs was consulted before this instrument was made.
- The Office of Best Practice Regulation (OBPR) has advised that a Regulatory Impact Statement is not required (OBPR Reference 20888).
- 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.
- The instrument commences immediately following the commencement of Schedule 1 to the Customs Amendment (Comprehensive and Progressive Agreement for Trans-Pacific Partnership Implementation) Act 2018.
Overview
The Migration (LIN 18/183: Determination of International Trade Obligations relating to Labour Market Testing) Instrument 2018 was enacted to ensure that Australia’s international trade obligations are integrated into its migration policy concerning labour market testing. This instrument, made under subsection 140GBA(2) of the Migration Act 1958, aims to align Australia's obligations under international trade agreements with its labour market testing requirements. By repealing the previous instrument, IMMI 17/109, LIN 18/183 introduces the obligations arising from the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (TPP-11) and ensures that labour market testing is not inconsistent with these international obligations once a signatory country ratifies the agreement into its domestic law. The enactment body responsible for this instrument is the Minister for Home Affairs, under the authority granted by the Migration Act 1958, with the policy objective being to uphold Australia's commitments under international trade agreements while managing its labour market testing provisions.
Scope and Application
The Migration (LIN 18/183: Determination of International Trade Obligations relating to Labour Market Testing) Instrument 2018 operates under the Migration Act 1958, providing an exemption from labour market testing requirements for certain migration nominations that would otherwise be inconsistent with Australia's international trade obligations. Specifically, this instrument determines Australia’s obligations under international trade agreements, such as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (TPP-11), thereby exempting approved sponsors from labour market testing if doing so would contravene these agreements. The instrument applies to persons whose countries are parties to the TPP-11 and have ratified it into their domestic legislation, thereby making it relevant for entities and individuals involved in the migration sponsorship process. Its scope extends to international trade agreements and does not apply to other forms of trade or labour obligations not covered by these agreements. The instrument is exempt from disallowance and does not require a Statement of Compatibility with Human Rights, as advised by the Office of Best Practice Regulation.
Key Provisions
The Migration (LIN 18/183: Determination of International Trade Obligations relating to Labour Market Testing) Instrument 2018, which operates under subsection 140GBA(2) of the Migration Act 1958, outlines the international trade obligations of Australia concerning labour market testing. This instrument serves to repeal the previous IMMI 17/109 instrument in accordance with subsection 33(3) of the Acts Interpretation Act 1901. It specifically addresses the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (TPP-11), and determines that once a signatory country ratifies the TPP-11 into domestic legislation, Australia's obligations under the agreement take effect, thereby exempting relevant persons from the labour market testing requirements of section 140GBA of the Act. This ensures that Australia's obligations under the TPP-11 are given domestic effect for labour market testing purposes.
The obligations imposed by this instrument on parties or entities are primarily to ensure compliance with Australia’s international trade obligations as defined by the TPP-11. This means that if a country that is a signatory to the TPP-11 ratifies the agreement into their domestic legislation, the labour market testing conditions in section 140GBA of the Migration Act 1958 do not apply to nominations by an approved sponsor for relevant persons from that country. This requirement ensures that Australia’s international commitments are respected, and the labour market testing conditions are only applied when consistent with those international obligations.
Any breaches of the obligations set out in this instrument could potentially lead to legal consequences. Although the specific penalties are not detailed within the text, breaches of the Migration Act 1958 generally can result in both civil and criminal penalties. Civil penalties can include fines, while criminal penalties can include imprisonment, reflecting the seriousness with which breaches of migration laws are treated. The exact penalties would depend on the nature and severity of the breach, as well as any applicable provisions within the broader legislative framework of the Migration Act 1958.