EXPLANATORY STATEMENT
Migration Regulations 1994
Migration (LIN 20/237: Health Waiver for Participating States and Territories) Instrument 2020
(clauses 846.111, 855.111, 856.111 and 857.111 of Schedule 2)
- The instrument, LIN 20/237, is made under clauses 846.111, 855.111, 856.111 and 857.111 of Schedule 2 to the Migration Regulations 1994 (the Regulations), as in force immediately before 1 July 2013.
- In accordance with subsection 33(3) of the Acts Interpretation Act 1901 (the AIA), the instrument repeals the Health Waiver – Participating States and Territories Instrument (IMMI 10/064). 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 the States and Territories which have agreed to participate in the health waiver scheme for the purposes of the now repealed clauses 846.111, 855.111, 856.111 and 857.111 of Schedule 2 to the Regulations (as they existed before 1 July 2013).
- The purpose of the instrument is to remake IMMI 10/064, which is due to sunset on 1 October 2020. There have been no changes to the specified States and Territories from those specified in IMMI 10/064.
- The instrument is made for the purposes of the Subclass 846 (State/Territory Sponsored Regional Established Business in Australia) visa, the Subclass 855 (Labour Agreement) visa, the Subclass 856 (Employer Nomination Scheme) visa and the Subclass 857 (Regional Sponsored Migration Scheme) visa. These visas have been closed to new applicants since 1 July 2013. However, on 1 July 2013, Schedule 2 to the Regulations was amended and the amendments applied to visa applications in these subclasses of visas made on or after 1 July 2013. The effect of the amendments is that the Regulations as they existed prior 1 July 2013 continue to apply to visa applications made before 1 July 2013.
- IMMI 10/064 was in force in respect of pre 1 July 2013 applications, but is due to sunset on 1 October 2020 in accordance with the Legislation Act 2003. The purpose of this instrument is to make a new instrument in identical form, so at all times there is an instrument in place for the purposes of processing any pre 1 July 2013 visa applications in the aforementioned visa subclasses.
- In accordance with paragraph 15J(2)(e) of the Legislation Act 2003, consultation was not necessary. The instrument is of a minor or machinery nature and does not substantially alter existing arrangements.
- The Office of Best Practice Regulation (OBPR) has advised that a Regulatory Impact Statement is not required (OBPR Reference 43099).
- Under paragraph (a) of item 20 of the table in section 10 of the Legislation (Exemptions and Other Matters) Regulations 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 after registration on the Federal Register of Legislation.
Overview
The Migration Regulations 1994 (Migration Regulations) are central to the regulation of Australia's migration processes, and the Migration (LIN 20/237: Health Waiver for Participating States and Territories) Instrument 2020 aims to address the gap created by the sunsetting of the previous Health Waiver – Participating States and Territories Instrument (IMMI 10/064) on 1 October 2020. Enacted by the Australian government, the instrument serves to continue the operation of the health waiver scheme for participating States and Territories, ensuring that pre-existing visa applications under certain subclasses can be processed in accordance with the regulations as they stood before 1 July 2013. This legislative instrument is made under the authority granted by clauses 846.111, 855.111, 856.111 and 857.111 of Schedule 2 to the Migration Regulations and repeals IMMI 10/064. The objective is to maintain the continuity of the health waiver scheme, ensuring no interruption in the processing of visa applications made before 1 July 2013 for the Subclass 846, 855, 856, and 857 visas.
Scope and Application
The Migration (LIN 20/237: Health Waiver for Participating States and Territories) Instrument 2020 applies to the States and Territories that have agreed to participate in the health waiver scheme for the purposes of processing pre-1 July 2013 applications for specific Australian visas. These include the Subclass 846 (State/Territory Sponsored Regional Established Business in Australia) visa, the Subclass 855 (Labour Agreement) visa, the Subclass 856 (Employer Nomination Scheme) visa and the Subclass 857 (Regional Sponsored Migration Scheme) visa. The instrument operates to specify the participating States and Territories, and it is designed to replace the repealed Health Waiver – Participating States and Territories Instrument (IMMI 10/064). It ensures that there is a continuous legal framework for processing the mentioned visa applications made before 1 July 2013, under the now closed visa subclasses. The instrument is of a minor and machinery nature, hence it does not require consultation or a Regulatory Impact Statement and is exempt from disallowance.
Key Provisions
The main operative sections of the Migration (LIN 20/237: Health Waiver for Participating States and Territories) Instrument 2020, include clauses 846.111, 855.111, 856.111 and 857.111 of Schedule 2 to the Migration Regulations 1994 (Regulations). These clauses specify the participating States and Territories for the health waiver scheme. The instrument also serves to remake the previously repealed Health Waiver – Participating States and Territories Instrument (IMMI 10/064) which is due to sunset on 1 October 2020. This is to ensure there is always an instrument in place for processing pre 1 July 2013 visa applications in the subclasses of visas, namely Subclass 846 (State/Territory Sponsored Regional Established Business in Australia) visa, Subclass 855 (Labour Agreement) visa, Subclass 856 (Employer Nomination Scheme) visa, and Subclass 857 (Regional Sponsored Migration Scheme) visa.
The instrument imposes certain obligations and requirements on the parties involved. These requirements are primarily focused on ensuring the smooth processing of visa applications under the specified subclasses, made before 1 July 2013. The participating States and Territories must adhere to the provisions outlined in the instrument to maintain the health waiver scheme's effectiveness. The instrument ensures that there is continuity in the processing of these visa applications by providing a new instrument in identical form to the one that is due to sunset.
The instrument does not introduce any new offences or penalties but maintains the existing framework for processing visa applications under the specified subclasses. The consequences for breaching the provisions of the Regulations or the instrument would be determined by the existing legislative framework. The maximum penalties for breaches of the Migration Act 1958 can vary, with civil penalties including fines of up to $33,000 per offence and criminal penalties including fines of up to $220,000 and/or imprisonment for up to 10 years per offence. However, it is important to note that the specific penalties for a breach would depend on the nature and severity of the breach.
The instrument, by repealing IMMI 10/064 and replacing it with LIN 20/237, ensures that there is always a governing instrument in place for processing visa applications in the specified subclasses made before 1 July 2013. This is crucial for maintaining the integrity and continuity of the visa application process. The instrument operates under the authority of the Migration Regulations 1994 and the Acts Interpretation Act 1901, and it is subject to the existing penalties and consequences for breaches of the Migration Act 1958.