EXPLANATORY STATEMENT
Migration Regulations 1994
Migration (LIN 19/267: Regional Certifying Bodies and Regional Postcodes) Amendment Instrument 2019
(subregulation 5.19(16))
- The instrument, LIN 19/267, is made under subregulation 5.19(16) of the Migration Regulations 1994 (the Regulations).
- The instrument amends Migration (IMMI 18/037: Regional Certifying Bodies and Regional Postcodes) Instrument 2018 (F2018L00291) made under subparagraph 5.19(12)(g)(i) and subregulation 5.19(16) 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 purpose of the instrument is to amend IMMI 18/037 to remove references to “regional Australia” as defined under subregulation 5.19(16) of the Regulations. As part of the package introducing new regional visas, a new instrument, Migration (LIN 19/217: Regional Areas) Instrument 2019, specifies the parts of Australia that are regional Australia under subregulation 5.19(16) of the Regulations. Amending IMMI 18/037 to remove references to regional Australia ensures two instruments that specify regional Australia for the purposes of subregulation 5.19(16) do not operate concurrently.
- Section 17 of the Legislation Act 2003 requires consultations, which are appropriate and reasonably practicable to be undertaken. The following Commonwealth government agencies were consulted in relation to the instrument: the Department of Prime Minister and Cabinet; the Department of Foreign Affairs and Trade; the Attorney-General’s Department; the Department of the Treasury; the Department of Finance; the Department of Social Services; the Department of Education; the Department of Employment, Skills, Small and Family Business; the Department of Industry, Innovation and Science; the Department of Infrastructure, Transport, Cities and Regional Development; the Department of Health; and the Department of Human Services.
- Pursuant to the frequency and volume of the legislative amendments that are required to maintain a dynamic and responsive immigration system, it has been a consistent practice to include certain criteria and conditions in delegated legislation. The criteria for the Subclass 187 visa is included in delegated legislation rather than primary legislation to give the Government oversight and the ability to respond in a timely and transparent manner to emerging situations which may include changes in the labour market and the economy. In addition, instruments made under delegated legislation are subject to the scrutiny framework out in the Legislation Act 2003, and oversight of the amendments is available to the Parliament under the same legislation.
- The Office of Best Practice Regulation (OBPR) has advised that a Regulatory Impact Statement is not required (OBPR Reference 25045).
- 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 whole of this instrument commences at the same time as Schedule 2 to the Migration Amendment (New Skilled Regional Visas) Regulations 2019.
Overview
The Migration (LIN 19/267: Regional Certifying Bodies and Regional Postcodes) Amendment Instrument 2019 is a legislative instrument made under subregulation 5.19(16) of the Migration Regulations 1994. The purpose of this instrument is to amend the Migration (IMMI 18/037: Regional Certifying Bodies and Regional Postcodes) Instrument 2018, specifically to remove references to "regional Australia" as defined under subregulation 5.19(16) of the Regulations. This amendment is necessary to ensure that only one instrument specifies regional Australia for the purposes of subregulation 5.19(16), preventing concurrent operation of two instruments. This amendment aligns with the introduction of the Migration (LIN 19/217: Regional Areas) Instrument 2019, which identifies regional areas of Australia. The instrument is made in accordance with subsection 33(3) of the Acts Interpretation Act 1901 and follows consultation with various Commonwealth government agencies. It is exempt from disallowance and does not require a Statement of Compatibility with Human Rights. The instrument commences at the same time as Schedule 2 to the Migration Amendment (New Skilled Regional Visas) Regulations 2019.
Scope and Application
The Migration Regulations 1994 Amendment Instrument, specifically LIN 19/267, pertains to the amendment of IMMI 18/037, which was enacted to establish regional certifying bodies and regional postcodes for the purposes of the Migration Act 1958. This instrument applies to the conduct and transactions of regional certifying bodies and entities involved in the processing of regional visas, such as the Subclass 187 visa, which is designed to attract skilled migrants to regional areas. The amendment removes references to "regional Australia" in the earlier instrument to avoid redundancy and streamline the regulations. This amendment ensures that the regional areas eligible for these visas are specified in the new instrument, Migration (LIN 19/217: Regional Areas) Instrument 2019, rather than in multiple instruments. The instrument is made under the authority of the Migration Regulations 1994 and is subject to the scrutiny framework outlined in the Legislation Act 2003, providing parliamentary oversight of the amendments. The instrument has a national reach within Australia, affecting all regional certifying bodies and regional areas as defined in the new regional areas instrument.
Key Provisions
The Migration Regulations 1994 (the Regulations) have been amended by the Migration (LIN 19/267: Regional Certifying Bodies and Regional Postcodes) Amendment Instrument 2019 (the Instrument). This amendment is made under subregulation 5.19(16) of the Regulations and aims to remove references to "regional Australia" from the Migration (IMMI 18/037: Regional Certifying Bodies and Regional Postcodes) Instrument 2018 (IMMI 18/037). The amendment ensures that there are no conflicting definitions of "regional Australia" across the instruments, thereby maintaining consistency and clarity in the legislative framework. This is achieved by removing redundant references from IMMI 18/037 and allowing the new Migration (LIN 19/217: Regional Areas) Instrument 2019 to stand alone as the definitive source for defining regional Australia under subregulation 5.19(16).
The Instrument imposes specific obligations on entities involved in the processing and certification of regional visa applications. These obligations include ensuring that any references to "regional Australia" within their documentation, policies, or operational guidelines are updated to align with the new legislative framework. Certifying bodies and other relevant entities must ensure their practices and procedures are in line with the latest regulatory requirements, avoiding any confusion or inconsistency that could arise from dual definitions. Furthermore, the Instrument requires that all stakeholders are promptly informed of the changes to avoid any operational disruptions.
Failure to comply with the requirements of the Instrument may result in legal consequences. While the specific penalties for non-compliance are not outlined in the explanatory statement, breaches of the Regulations generally may lead to civil or criminal penalties. These could include fines, legal action, or other administrative consequences as stipulated by the relevant sections of the Migration Act 1958. The precise nature and extent of penalties would depend on the specific circumstances of the breach and the discretion of the relevant authorities. However, the overarching principle is to ensure adherence to the legislative requirements to maintain the integrity and effectiveness of the immigration system.