EXPLANATORY STATEMENT

Migration Regulations 1994

SPECIFICATION OF OCCUPATIONS, A PERSON OR BODY, A COUNTRY OR COUNTRIES AMENDMENT INSTRUMENT 2017/040

(Subregulations 1.15I(1) and 2.26B(1), paragraphs 2.72(10)(aa) and 2.72B(3)(b), sub-subparagraphs 5.19(4)(h)(i)(A), item 4(a) of the table in subitem 1137(4), item 4(a) of the table in subitem 1138(4) and item 4(a) of the table in subitem 1230(4), paragraph 1229(3)(k) and paragraph 186.234(2)(a))

1. Instrument IMMI 17/040 is made under subregulations 1.15I(1) and 2.26B(1), paragraphs 2.72(10)(aa) and 2.72B(3)(b), sub-subparagraphs 5.19(4)(h)(i)(A), item 4(a) of the table in subitem 1137(4), item 4(a) of the table in subitem 1138(4) and item 4(a) of the table in subitem 1230(4) and paragraph 1229(3)(k) of Schedule 1 and paragraph 186.234(2)(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).
2. The Instrument amends IMMI 16/059 (F2016C01004). Subsection 33(3) of the
   Acts Interpretation Act 1901, which provides 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.
3. The Instrument operates to make amendments to Schedule 1, Schedule 2 and the Notes contained in the instrument IMMI 16/059. In Schedule 1, the Medium and Long-term Strategic Skills List (MLTSSL) replaces the former Skilled Occupation List (SOL). In Schedule 2, the Short-term Skilled Occupation List (STSOL) replaces the former Consolidated Sponsored Occupation List (CSOL).
4. These changes reduce the number of occupations available for subclass 457 visa applicants from 650 to 434. Compared with the previous Schedule 1, the MLTSSL now has 16 occupations restricted to only apply to the Skilled Independent (subclass 189) visa, the Temporary Graduate (subclass 485) visa, and the Skilled Regional (Provisional) subclass 489 visa where the applicant is nominated by a state or territory. Additionally, compared with the previous Schedule 2 of the Instrument, the new Schedule 2 has 200 fewer occupations. These occupations have been restricted and removed on the basis of their historically low visa grant rates, Australian citizenship requirements and advice from the Department of Employment concerning their appropriateness for this list..
5. In addition, caveats in relation to specifications of occupations for a Subclass 457 – Temporary Work (Skilled) visa have been reviewed, updated and/or included for occupations in the MLTSSL and STSOL, limiting the breadth of the occupation specified for the purposes of satisfying the criteria for the relevant visa or nomination. The position caveats are contained in the Notes to Schedule 1 and Schedule 2. The 59 occupations which are subject to changed caveats are listed at Attachment A.  Three existing caveats for the Subclass 186 – Employer Nomination Scheme visa remain the same and are located in  Note 24.
6. In addition to the position caveats, Note 25 has the effect of ensuring that the identified occupations listed in the MLTSSL only apply in relation to certain visa subclasses. Note 26 also ensures that identified occupations listed in the STSOL also only apply in relation to certain visa subclasses.  Further, Note 26 ensures that the identified occupations only apply in relation to the subclass 457 programme for positions located in Regional Australia (as defined in subregulation 5.19(7) of the Migration Regulations 1994).
7. Schedule 3 is inserted in the instrument after the Notes.  This schedule contains provisions as to how the amendments in IMMI 17/040 will apply in relation to paragraphs 3, 4, 5, 6, 7 and 8 of IMMI 16/059.
8. The effect of the application provisions for paragraph 3 is that the SOL will continue to apply in relation to an invitation issued on or after 1 July 2016 and before the commencement of IMMI 17/040 and in relation to the person who was issued the invitation and if applicable the spouse or de facto partner of that person.
9. The effect of the application provisions for paragraph 4 is that the SOL will continue to apply in relation to a person who applies for a Subclass 485 Temporary Graduate visa on or after 1 July 2016 but before the commencement of IMMI 17/040 including applications made but not finally determined before the commencement of IMMI 17/044.
10. The effect of the application provisions for paragraph 5 is that the SOL and CSOL will continue to apply in relation to an invitation issued on or after 1 July 2016 and before the commencement of IMMI 17/040 and in relation to the person who was issued the invitation and if applicable the spouse or de facto partner of that person.
11. The effect of the application provisions for paragraph 6 is that the SOL and CSOL will continue to apply in relation to an application for approval of a nomination for a Subclass 186 Employer Nomination Scheme visa on or after 1 July 2016 but before the commencement of IMMI 17/040 including nominations made but not finally determined before the commencement of IMMI 17/040.
12. The effect of the application provisions for paragraph 7 is that the SOL and CSOL will continue to apply in relation to a person who applies for a Subclass 186 Employer Nomination Scheme visa on or after 1 July 2016 but before the commencement of IMMI 17/040 including applications made but not finally determined before the commencement of IMMI 17/040.
13. The effect of the application provisions for paragraph 8 is that the SOL and CSOL will continue to apply in relation to an application for a Subclass 407 (Training) visa made on or after 19 November 2016 but before the commencement of IMMI 17/040 including applications made but not finally determined before the commencement of IMMI 17/040.
14. Consultation was undertaken with the Commonwealth Department of Education and Training and the Commonwealth Department of Employment before the instrument was made.
15. The Office of Best Practice Regulation (OBPR) has advised that a Regulatory Impact Statement is not required (OBPR Reference: 21946).
16. Under section 42 of the Legislation Act 2003, the Instrument is subject to disallowance and therefore a Statement of Compatibility with Human Rights is included at Attachment B.
17. The Instrument commences on the day after registration.

Attachment A – Occupations subject to caveats

Attachment B – Statement of Compatibility with Human Rights

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Specification of Occupations, a Person or Body, a Country or Countries Legislative Instrument (IMMI 17/040)

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Specification of Occupations, a Person or Body, a Country or Countries Legislative Instrument

This instrument (IMMI 17/040) specifies skilled occupations, Australian and New Zealand Standard Classification of Occupations (ANZSCO) codes and relevant assessing authorities relevant to assessment of applications for skilled migration under the Migration Regulations 1994 (Migration Regulations).

The ANZSCO code is used by the Department of Immigration and Border Protection to ensure that applicants who wish to migrate as skilled migrants nominate a skilled occupation for migration purposes. Assessing authorities are independent expert bodies who certify that the applicant’s educational qualifications and, in some cases, skilled work experience in their occupation, is comparable to that necessary to undertake the same position in Australia.

This instrument specifies the Medium and Long-term Strategic Skills List (MLTSSL) which provides eligible occupations, ANZSCO codes and assessing authorities for independent or family sponsored skilled visas. Occupations on the MLTSSL are those identified by the Australian Government as being in shortage in the Australian labour market in the medium to long term.

The instrument also specifies the Short-term Skilled Occupation List (STSOL) which similarly provides additional eligible occupations, ANZSCO codes and assessing authorities for applicants who apply for:

• State/Territory nominated visas;

• the Temporary Work (Skilled) visa;

• the Direct Entry stream of the Employer Nomination Scheme; and

• the Training visa.

The MLTSSL replaces the former Skilled Occupation List (SOL) and the STSOL replaces the former Consolidated Sponsored Occupation List (CSOL).  The new MLTSSL now has 16 occupations restricted to only apply to the Skilled Independent (subclass 189) visa, the Temporary Graduate (subclass 485) visa, and the Skilled Regional (Provisional) subclass 489 visa where the applicant is nominated by a state or territory. The new STSOL contains 200 fewer occupations than the former CSOL. The occupations have been restricted and removed on the basis of their historically low visa grant rates, Australian citizenship requirements and advice from the Department of Employment concerning their appropriateness for this list.

The instrument also updates and/or includes position caveats for certain occupations for applicants who apply for the Temporary Work (Skilled) visa.  The caveats are intended to improve the integrity of this visa programme by limiting the breadth of the occupation specified for the purposes of satisfying the criteria for the visa or nomination and therefore ensuring that applicants are nominated for genuinely skilled positions.

Human rights implications

The proposed Legislative Instrument has been assessed against the seven core international human rights treaties and does not engage any of the applicable rights or freedoms.

Conclusion

This Legislative Instrument is compatible with human rights.

The Hon Peter Dutton, Minister for Immigration and Border Protection