EXPLANATORY STATEMENT
Migration Act 1958
Migration (LIN 20/029: Determination of International Trade Obligations Relating to Labour Market Testing) Instrument 2020
(Subsection 140GBA(2))
- This instrument, Migration (LIN 20/029: Determination of International Trade Obligations Relating to Labour Market Testing) Instrument 2020 (LIN 20/029), is made under subsection 140GBA(2) of the Migration Act 1958 (the Act).
- This instrument repeals Migration (LIN 18/183: Determination of International Trade Obligations Relating to Labour Market Testing) Instrument 2018 (F2018L01479) made under subsection 140GBA(2) of the Act 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.
- This instrument operates under subsection 140GBA(2) of the Act for the Minister to determine (as an international trade obligation) an obligation of Australia under international law that relates to international trade, which includes an obligation that arises under any agreement between Australia and another country, or countries for the purposes of paragraph 140GBA(1)(c).
- Subsection 140GBA(1) of the Act provides that the labour market testing condition specified in section 140GBA applies to a nomination by a person if:
a) the person is or has applied to be, in a class of approved work sponsors; and
b) the person nominates a proposed occupation and a particular position, associated with the nominated occupation, that is to be filled by a visa applicant (including proposed applicants) or a visa holder identified in the nomination; and
c) it would not be inconsistent with any international trade obligation of Australia determined under subsection 140GBA(2) to require the person to satisfy the labour market testing condition, in relation to the nominated position.
5. The purpose of this instrument is to give domestic effect to Australia’s obligations under international trade agreements, to which it is a party, for the purposes of applying the labour market testing condition. Specifically, section 6 of the instrument includes three new free trade agreements made under the Customs Amendment (Growing Australian Export Opportunities Across the Asia-Pacific) Act 2019 (Customs Amendment Act), namely the Peru-Australia Free Trade Agreement (PAFTA), the Indonesia-Australia Comprehensive Economic Partnership Agreement (IA-CEPA), and the Free Trade Agreement between Australia and Hong Kong, China (A-HKFTA). All other free trade agreements mentioned in the instrument were included in the previous instrument LIN 18/183.
6. The instrument commences at the same time as Schedule 1 to the Customs Amendment Act with the exception of the following agreements which commence at the following times:
a) for IA-CEPA, the instrument commences at the same time as Schedule 2 to the Customs Amendment Act commences; and
b) for A-HKFTA, the instrument commences at the same time as Schedule 3 to the Customs Amendment Act commences.
7. The Department of Foreign Affairs and Trade consulted with public and targeted stakeholders before, during and after the conclusion of the negotiations of the three new agreements. The consultation included in-person meetings with relevant stakeholders, requests for written submissions and specific outreach sessions with individual businesses, peak bodies and unions and civil society representatives.
8. The Office of Best Practice Regulation (OBPR) has advised that a Regulatory Impact Statement is not required (OBPR Reference 20888).
9. 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 (LIN 20/029: Determination of International Trade Obligations Relating to Labour Market Testing) Instrument 2020 is an instrument made under subsection 140GBA(2) of the Migration Act 1958, serving to repeal the previous Migration (LIN 18/183: Determination of International Trade Obligations Relating to Labour Market Testing) Instrument 2018 in line with the Acts Interpretation Act 1901. This instrument facilitates the Minister’s role in determining Australia’s international trade obligations under international law, which includes obligations arising from trade agreements with other countries, thereby impacting the application of the labour market testing condition specified in the Migration Act. The instrument aims to align Australia's domestic migration policies with its international trade commitments, specifically incorporating three new free trade agreements: the Peru-Australia Free Trade Agreement, the Indonesia-Australia Comprehensive Economic Partnership Agreement, and the Free Trade Agreement between Australia and Hong Kong, China. This alignment ensures that visa applications are processed in a manner consistent with Australia’s international trade obligations, as articulated in the relevant free trade agreements.
Scope and Application
The Migration (LIN 20/029: Determination of International Trade Obligations Relating to Labour Market Testing) Instrument 2020 applies to persons who are approved work sponsors or have applied to be approved work sponsors under the Migration Act 1958, and who nominate a proposed occupation and particular position to be filled by a visa applicant or holder. This instrument is made under the authority conferred by the Migration Act and operates to determine Australia's international trade obligations that relate to international trade agreements, including labour market testing conditions. The instrument specifically gives effect to Australia's obligations under the Peru-Australia Free Trade Agreement, the Indonesia-Australia Comprehensive Economic Partnership Agreement, and the Free Trade Agreement between Australia and Hong Kong, China. The instrument does not require a Regulatory Impact Statement and is exempt from disallowance, thereby not necessitating a Statement of Compatibility with Human Rights. The commencement of the instrument aligns with the Customs Amendment (Growing Australian Export Opportunities Across the Asia-Pacific) Act 2019, with specific commencement dates for the Indonesia-Australia and Australia-Hong Kong free trade agreements.
Key Provisions
The Migration (LIN 20/029: Determination of International Trade Obligations Relating to Labour Market Testing) Instrument 2020 (LIN 20/029) is a legislative instrument made under the Migration Act 1958. It serves to determine Australia's international trade obligations that relate to international trade, specifically in the context of labour market testing for visa nominations. This instrument repeals the previous instrument LIN 18/183 and incorporates new free trade agreements into the legislative framework. It operates under subsection 140GBA(2) of the Act and applies to approved work sponsors who must comply with the labour market testing condition unless doing so would be inconsistent with Australia's international trade obligations.
Under section 6 of LIN 20/029, three new free trade agreements are incorporated: the Peru-Australia Free Trade Agreement (PAFTA), the Indonesia-Australia Comprehensive Economic Partnership Agreement (IA-CEPA), and the Free Trade Agreement between Australia and Hong Kong, China (A-HKFTA). The instrument ensures that the labour market testing condition specified in section 140GBA of the Migration Act is applied in a manner consistent with these trade agreements. This means that the labour market testing requirements for certain occupations and positions nominated by approved work sponsors must align with Australia's commitments under these trade agreements. The commencement of LIN 20/029 varies slightly for each agreement, with IA-CEPA and A-HKFTA having specific commencement dates tied to the Customs Amendment (Growing Australian Export Opportunities Across the Asia-Pacific) Act 2019.
LIN 20/029 imposes obligations on approved work sponsors to ensure their visa nominations comply with Australia's international trade obligations. This includes understanding and adhering to the terms of the free trade agreements incorporated into the instrument. The Department of Foreign Affairs and Trade engaged in extensive consultation with various stakeholders, including businesses, peak bodies, unions, and civil society representatives, during the negotiation of the new agreements to ensure their provisions were properly considered. The instrument is exempt from disallowance under section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015, and a Regulatory Impact Statement is not required.
The breaches of LIN 20/029 could lead to non-compliance with Australia's international trade obligations, potentially resulting in disputes or penalties under the relevant free trade agreements. While the instrument itself does not specify penalties, breaches of the labour market testing condition under the Migration Act 1958 could incur civil or criminal penalties. For instance, knowingly making a false or misleading statement in a nomination could result in a civil penalty of up to $27,500 for individuals or $137,500 for bodies corporate, as well as potential criminal penalties including fines and imprisonment. The specific penalties and consequences depend on the nature and severity of the breach, as well as the relevant provisions of the Migration Act and any applicable trade agreements.