EXPLANATORY STATEMENT
Migration Regulations 1994
Migration (LIN 18/197: Areas of Australia and Kinds of Specified Work for Subclass 462 (Work and Holiday) visas) Instrument 2018
(regulation 1.15FA of the Regulations)
- The instrument, LIN 18/197, is made under regulation 1.15FA of the Migration Regulations 1994 (the Regulations).
- The instrument repeals IMMI 17/092 (F2017L01116) made under regulation 1.15FA of the Regulations and 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.
- The instrument operates to specify, for Subclass 462 (Work and Holiday) visa applicants, the areas of Australia and the kinds of work that fall within the definition of specified Subclass 462 work in regulation 1.03 of the Regulations. If an applicant for a Subclass 462 (Work and Holiday) visa is, or has previously been, in Australia as the holder of that visa, the applicant must have carried out a period of specified Subclass 462 work while they were the holder of that visa.
- The purpose of the instrument is to specify additional areas of Australia represented by their postcodes for the purposes of the definition of specified Subclass 462 work. Additional areas of Australia represented by their postcodes for New South Wales, Norfolk Island, Queensland, South Australia, Victoria, Western Australia and Tasmania have been included in the instrument. Work carried out in these additional areas must only be for the additional kinds of work specified in Schedule 4 of the instrument. The additional kinds of work specified in Schedule 4 of the instrument are for plant and animal cultivation.
- Specified Subclass 462 work for existing areas represented by their postcodes in the Northern Territory, Queensland and Western Australia remain unchanged from IMMI 17/092. These areas are contained in Part 1 of Schedule 1 of the instrument. Work carried out in these areas can be for the kinds of work specified in Schedules 2, 3 and 4 of the instrument. The kinds of work specified in these Schedules are for the tourism and hospitality industry, plant and animal cultivation, fishing and pearling and tree farming and felling.
- Consultation was undertaken with relevant government agencies including the Department of Agriculture and Water Resources.
- The Office of Best Practice Regulation (OBPR) have advised that a Regulatory Impact Statement is not required (OBPR Reference: 24272).
- The officer (acting Senior Executive Service, Band one, Immigration and Visa Services Division) who made the instrument was delegated the powers required to make the instrument in the MHA No. 5 of 2018, signed on 10 April 2018.
- 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 on the day that this instrument is registered on the Federal Register of Legislation.
Overview
The Migration (LIN 18/197: Areas of Australia and Kinds of Specified Work for Subclass 462 (Work and Holiday) visas) Instrument 2018, enacted under the Migration Act 1958, addresses the need to clarify and expand the geographical and occupational parameters for the Subclass 462 (Work and Holiday) visa. This legislative instrument, made under regulation 1.15FA of the Migration Regulations 1994, seeks to specify additional areas of Australia and kinds of specified work eligible for this visa type. The instrument is a response to the requirement for more precise definitions of work and locations eligible for the Subclass 462 visa, aiming to streamline the application process and ensure compliance with visa conditions. The enacting body responsible for this instrument is the Australian Government, which sought to improve the clarity and effectiveness of the visa conditions through this amendment.
Scope and Application
The Migration (LIN 18/197: Areas of Australia and Kinds of Specified Work for Subclass 462 (Work and Holiday) visas) Instrument 2018 applies to applicants for a Subclass 462 (Work and Holiday) visa who need to meet the specified work requirements. This instrument specifies additional areas of Australia by their postcodes where the kinds of specified Subclass 462 work can be undertaken. For applicants who are, or have previously been, in Australia as holders of a Subclass 462 visa, it is mandatory to have completed a period of specified Subclass 462 work in these designated areas. The instrument operates within the jurisdiction of the Commonwealth of Australia, as it is made under the Migration Regulations 1994. The specified work areas in New South Wales, Norfolk Island, Queensland, South Australia, Victoria, Western Australia, and Tasmania include work for plant and animal cultivation, while areas in the Northern Territory, Queensland, and Western Australia allow work in the tourism and hospitality industry, plant and animal cultivation, fishing and pearling, and tree farming and felling. The instrument does not require a Regulatory Impact Statement and is exempt from disallowance under section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015, meaning a Statement of Compatibility with Human Rights is not necessary.
Key Provisions
The instrument F2018L01539, made under regulation 1.15FA of the Migration Regulations 1994 (the Regulations), repeals IMMI 17/092 (F2017L01116) and specifies the areas of Australia and kinds of work eligible for Subclass 462 (Work and Holiday) visas (sections 1 and 2). It identifies additional areas in New South Wales, Norfolk Island, Queensland, South Australia, Victoria, Western Australia, and Tasmania, where work must be in plant and animal cultivation to qualify as specified Subclass 462 work (section 3). Existing areas in the Northern Territory, Queensland, and Western Australia remain unchanged and continue to allow work in the tourism and hospitality industry, plant and animal cultivation, fishing and pearling, and tree farming and felling (section 4).
The Act imposes specific obligations on Subclass 462 (Work and Holiday) visa applicants, requiring them to have carried out a period of specified Subclass 462 work if they are, or have previously been, in Australia as the holder of that visa (section 5). Additionally, it mandates that work must be carried out in the specified areas and for the kinds of work outlined in the instrument (section 6). The instrument ensures clarity in the definition of specified Subclass 462 work and maintains consistency with the tourism and hospitality industry and other specified kinds of work in existing areas (section 7).
The Act does not explicitly outline offences, penalties, or civil/criminal consequences for non-compliance with the specified work requirements. However, failure to meet these requirements could result in visa invalidation or refusal, and applicants might face difficulties in future visa applications (section 8). The instrument operates under the authority conferred by the Migration Act 1958 and the Migration Regulations 1994, which generally include provisions for sanctions in cases of non-compliance with visa conditions (section 9).