EXPLANATORY STATEMENT
Migration Act 1958
Migration (LIN 18/219: Determination of International Trade Obligations Relating to Labour Market Testing) Instrument 2018
(Subsection 140GBA(2))
- The instrument, LIN 18/219, is made under subsection 140GBA(2) of the Migration Act 1958 (the Act).
- 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 that the labour market testing condition in section 140GBA only applies to a nomination by an approved sponsor if it would not be inconsistent with any international trade obligation of Australia 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 instrument acts alongside instrument Migration (LIN 18/183: Determination of International Trade Obligations relating to Labour Market Testing) Instrument 2018, made under the same head of power. That instrument, known as LIN 18/183, provides a list of eleven international trade agreements which the Minister determines to be an international trade obligation for the purposes of paragraph 140GBA(1)(c) of the Act. The purpose of instrument LIN 18/219 is not to repeal LIN 18/183, but to add another international trade agreement to the legislative framework, under paragraph 140GBA(1)(c) of the Act. In particular, the instrument gives domestic effect to Australia’s commitments under the Pacific Agreement on Closer Economic Relations Plus (PACER Plus) for the purposes of labour market testing. PACER Plus will enter into force 60 days after the date on which eight countries notify the Depository (in this instance, the Government of Tonga) of their ratification of PACER Plus. As the date for entry into force of PACER Plus is contingent upon a minimum of eight signatories ratifying the agreement in their domestic legislation, a threshold has not been reached at the time of request for the approval of this instrument, a separate instrument with a bespoke commencement date is required.
- Australia’s obligations under PACER Plus will arise towards countries who have ratified PACER Plus into their domestic legislation, including obligations that relate to employer-sponsored temporary entry and stay of skilled workers. The requirement for labour market testing under section 140GBA of the Act would then be inconsistent with Australia’s obligations under PACER Plus, in certain circumstances. These circumstances include during sponsor nominations of intra-corporate transferees and independent executives. Australia is not obliged under PACER Plus to broadly waive labour market testing for all visa applicants from PACER Plus countries.
- Consultation was undertaken with the Department of Foreign Affairs and Trade before the instrument was made.
- The Office of Best Practice Regulation (OBPR) have 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.
- This instrument commences immediately following the commencement of Schedule 1 to the Customs Amendment (Pacific Agreement on Closer Economic Relations Plus Implementation) Act 2018 which commences on the day the Pacific Agreement on Closer Economic Relations Plus, done at Nuku’alofa, Tonga on 14 June 2017, enters into force for Australia.
Overview
The Migration (LIN 18/219: Determination of International Trade Obligations Relating to Labour Market Testing) Instrument 2018 is an instrument enacted under subsection 140GBA(2) of the Migration Act 1958 by the Minister for Immigration and Border Protection. This instrument was created to address the need to incorporate Australia’s international trade obligations into the legislative framework governing labour market testing requirements for visa sponsorships. Specifically, it aims to align these obligations with the commitments under the Pacific Agreement on Closer Economic Relations Plus (PACER Plus). This instrument does not seek to replace existing agreements but rather supplements them by adding PACER Plus to the list of international trade agreements that influence labour market testing conditions. The policy objective is to ensure that Australia’s visa sponsorship practices remain compliant with its international commitments, particularly in the context of skilled worker entry and stay under PACER Plus.
Scope and Application
The Migration (LIN 18/219: Determination of International Trade Obligations Relating to Labour Market Testing) Instrument 2018 applies to the obligations of approved sponsors under the Migration Act 1958, particularly concerning the labour market testing condition in section 140GBA. This legislative instrument is made under subsection 140GBA(2) of the Act, which allows the Minister to determine Australia’s international trade obligations that may affect labour market testing conditions for visa nominations. This instrument specifically incorporates Australia’s commitments under the Pacific Agreement on Closer Economic Relations Plus (PACER Plus) into the legislative framework, ensuring that labour market testing does not conflict with Australia’s obligations to ratifying countries. It is important to note that this instrument is not intended to repeal existing agreements but to supplement them by adding PACER Plus to the list of international trade agreements that impact labour market testing. The instrument’s application is contingent upon the entry into force of PACER Plus, which will be determined by the ratification of the agreement by at least eight countries. This instrument exempts itself from disallowance under section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015, and thus, a Statement of Compatibility with Human Rights is not required.
Key Provisions
The main sections of the Migration (LIN 18/219: Determination of International Trade Obligations Relating to Labour Market Testing) Instrument 2018 (subsection 140GBA(2)) determine Australia's international trade obligations for the purposes of paragraph 140GBA(1)(c) of the Migration Act 1958. This instrument, LIN 18/219, is made under the authority of subsection 140GBA(2), which allows the Minister to define Australia's obligations under international trade agreements. Specifically, the instrument aims to incorporate Australia's commitments under the Pacific Agreement on Closer Economic Relations Plus (PACER Plus) into the legislative framework for labour market testing. This instrument operates alongside another instrument, LIN 18/183, which lists eleven international trade agreements that are already considered obligations under the Act.
The obligations imposed by LIN 18/219 on parties governed by the Act primarily concern ensuring that any labour market testing requirements do not conflict with Australia's international trade obligations under PACER Plus. This is particularly relevant during the sponsor nominations of intra-corporate transferees and independent executives, where labour market testing may be inconsistent with Australia's commitments under PACER Plus. It is important to note that Australia is not required to broadly waive labour market testing for all visa applicants from PACER Plus countries but must adhere to the specific obligations outlined in the agreement.
The instrument also outlines specific consequences for non-compliance with the Act's requirements. While the Explanatory Statement does not detail specific offences, penalties, or consequences, the Act generally provides for civil and criminal penalties for breaches. Civil penalties can include fines, and in some cases, criminal penalties such as imprisonment may apply. The severity of these penalties can vary depending on the nature and extent of the breach. It is crucial for approved sponsors and other relevant parties to be aware of and comply with the obligations set forth by LIN 18/219 to avoid any legal repercussions.
Additionally, the instrument is exempt from disallowance under section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015, which means a Statement of Compatibility with Human Rights is not required. This instrument commences immediately following the commencement of Schedule 1 to the Customs Amendment (Pacific Agreement on Closer Economic Relations Plus Implementation) Act 2018, which aligns with the entry into force of PACER Plus for Australia.