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2010 - 2011 - 2012 - 2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MIGRATION AMENDMENT (TEMPORARY SPONSORED VISAS) BILL 2013
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Immigration and Citizenship,
the Hon. Brendan OConnor MP)
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Migration Amendment (Temporary Sponsored Visas) Bill 2013
OUTLINE
The Migration Amendment (Temporary Sponsored Visas) Bill 2013 amends the Migration
Act 1958 (the Migration Act) to enhance the Governments ability to deter sponsor behaviour
which is inconsistent with the policy intent of the Temporary Sponsored Visa Program (of
which Subclass 457 visas are a part). The Bill, together with proposed amendments to the
Migration Regulations 1994 (the Migration Regulations), presents a comprehensive package
of reform which would balance the interests of Australian workers with the need to
strengthen protections for overseas workers.
In particular, the Bill amends the Migration Act to:
reinforce the purpose of Division 3A of Part 2 of the Migration Act relating to
sponsorship;
require prescribed classes of sponsors to undertake labour market testing in relation to
a nominated occupation, in a manner consistent with Australias international trade
obligations;
provide the evidence for labour market testing which is to accompany an application
for a nomination;
provide exemptions from labour market testing in circumstances where there has been
a major disaster, or the skill level of the nominated occupation is equivalent to Skill
level 1 or Skill Level 2 as provided for in the Australian and New Zealand Standard
Classification of Occupations (ANZSCO);
in relation to exemptions from labour market testing- provide for the Minister, by way
of legislative instrument, to specify the occupations and for such legislative
instruments to be subject to disallowance by either House of the Parliament;
enshrine the kinds of sponsorship obligations for which the Minister must take
reasonable steps to ensure are prescribed in the Migration Regulations;
enhance the enforcement framework in relation to sponsorship to include enforceable
undertakings between the Minister and an approved sponsor or former approved
sponsor and the enforcement of those undertakings;
empower Fair Work Inspectors to be Inspectors under the Migration Act;
clarify that entry to premises under the Fair Work Act 2009 will enable a Fair Work
Inspector to exercise powers under the Migration Act; and
provide that an additional purpose for exercising inspector powers under the
Migration Act is to determine whether a person who is or was an approved sponsor
has contravened a civil penalty provision in or committed an offence against relevant
provisions of the Migration Act relating to work (employer sanctions provisions).
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The Bill also amends the Migration Regulations to prescribe:
standard business sponsors as the class of sponsor which is required to undertake
labour market testing in relation to a nominated occupation; and
extend the period in which a Subclass 457 visa holder subject to visa condition 8107
can seek new sponsored employment from 28 consecutive days to 90 consecutive
days.
The Bill also makes amendments to the Migration Act that are contingent on the
commencement of Part 6 of the Regulatory Powers (Standard Provisions) Act 2013.
The Bill seeks to deal with sponsors who are behaving contrary to the intention of the
Temporary Sponsored Work Visa program. Some employers are turning to overseas workers
first, rather than investing in local training and recruitment. To address this, the Bill also
seeks to ensure a balance between ensuring employment and training opportunities for
Australian citizens and Australian permanent residents with that of upholding the rights of
non-citizens to work in Australia under the Temporary Sponsored Work Visa program.
CONSULTATION
Consultation has taken place with various Commonwealth agencies including the Attorney-
Generals Department, the Department of Foreign Affairs and Trade, the Department of
Education, Employment and Workplace Relations, the Fair Work Ombudsman, the
Department of the Prime Minister and Cabinet, the Department of Treasury, the Department
of Resources, Energy and Tourism, the Department of Finance and Deregulation, and the
Office of Best Practice Regulation.
FINANCIAL IMPACT STATEMENT
The financial impact of these amendments is medium.
REGULATION IMPACT STATEMENT
The Office of Best Practice Regulation has been consulted and has advised that no Regulation
Impact Statement is required for the amendments contained in Schedule 1 and Schedules 3 to
5. The advice references are 14826, 14818 and 14884.
A Regulation Impact Statement was required for the amendments contained in Schedule 2 to
the Bill but the Prime Minister granted an exemption on the basis of exceptional
circumstances. A post-implementation review will be required within 1 to 2 years of
implementation.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
A Statement of Compatibility with Human Rights has been completed in relation to the
amendments in this Bill and assesses that the amendments are compatible with Australias
human rights obligations. A copy of the Statement of Compatibility with Human Rights is at
Attachment A.
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MIGRATION AMENDMENT (TEMPORARY SPONSORED VISAS) BILL 2013
NOTES ON INDIVIDUAL CLAUSES
Section 1 Short title
1. Section 1 of the Bill provides that this Act may be cited as the Migration Amendment
(Temporary Sponsored Visas) Act 2013.
Section 2 Commencement
2. Section 2 provides that each provision of this Act specified in column 1 of the table
commences, or is taken to have commenced, in accordance with column 2 of the table.
Any other statement in column 2 has effect according to its terms.
3. Item 1 of the table provides that sections 1 to 3 and anything in this Act not elsewhere
covered by this table commences on the day this Act receives the Royal Assent.
4. Item 2 of the table (amendments in Schedule 1) commences on the day after this Act
receives the Royal Assent.
5. Item 3 of the table (amendments in Schedule 2) commences on a single day to be fixed
by Proclamation. However, if the provision(s) do not commence within the period of 6
months beginning on the day this Act received the Royal Assent, they commence on
the day after the end of that period.
6. Item 4 of the table (amendments in Schedules 3 and 4) commence on the day after this
Act receives the Royal Assent.
7. Item 5 of the table (amendments in Schedule 5, Part 1) commence on the day this Act
receives the Royal Assent.
8. Item 6 of the table (amendments in Schedule 5, Part 2) commence on the later of:
the start of the day after this Act receives the Royal Assent; and
immediately after the commencement of Part 6 of the Regulatory Powers
(Standard Provisions) Act 2013.
However, the provision(s) do not commence at all if commencement of Part 6 of the
Regulatory Powers (Standard Provisions) Act 2013 does not occur.
9. Item 7 of the table (amendments in Schedule 6) commence on the day after this Act
receives the Royal Assent.
10. The note following the table provides that this table relates only to the provisions of
this Act as originally enacted. It will not be amended to deal with any later
amendments of this Act.
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11. Subsection 2(2) provides that any information in column 3 of the table is not part of
this Act. Information may be inserted in this column, or information in it may be
edited, in any published version of this Act.
Section 3 Schedule(s)
12. Subsection 3(1) provides that each Act, and each set of regulations, that is specified in
a Schedule to this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect according
to its terms.
13. Subsection 3(2) provides that the amendment of any regulation under subsection 3(1)
does not prevent the regulation, as so amended, from being amended or repealed by the
Governor-General.
.
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Schedule 1 - Sponsorship visas: purpose
Migration Act 1958
Item 1 At the end of Subdivision A of Division 3A of Part 2
14. This item adds new section 140AA in Division 3A of Part 2 of the Act.
15. New section 140AA of the Act sets out the purposes of Division 3A of Part 2 of the
Act, which is concerned with sponsorship. New section 140AA provides:
The purposes of this Division are as follows:
to provide a framework for a temporary sponsored work visa program in order to
address genuine skills shortages;
to address genuine skills shortages in the Australian labour market without
displacing employment and training opportunities for Australian citizens and
Australian permanent residents (within the meaning of the regulations) and
without the temporary sponsored work visa program serving as a mainstay of the
skilled migration program;
to balance the objective of ensuring employment and training opportunities for
Australian citizens and Australian permanent residents with that of upholding the
rights of non-citizens sponsored to work in Australia under the program;
to impose obligations on sponsors to ensure that:
o non-citizens sponsored to work in Australia under the program are
protected; and
o the program is not used inappropriately;
to enable monitoring, detection, deterrence and enforcement in relation to any
inappropriate use of the program;
to give Fair Work Inspectors (including the Fair Work Ombudsman) and
inspectors appointed under this Division the necessary powers and functions to
investigate compliance with the program.
16. The purpose of this amendment is to reinforce the purpose of Division 3A of Part 2 of
the Act relating to sponsorship. New section 140AA of the Act sets out broad
principles to reinforce the importance of temporary skilled workers to the Australian
economy while protecting Australian businesses and the employment and training of
Australian citizens and Australian permanent residents.
17. However, new section 140AA of the Act is not intended to impact on the way Division
3A is interpreted or administered, nor to limit or restrict any future interpretation of the
provisions in the Division.
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Schedule 2 Labour market testing
Part 1 - Amendment of the Migration Act 1958
Item 1 Subsection 140GB(2)
18. This item repeals subsection 140GB(2) and substitutes a new subsection 140GB(2) in
Subdivision B of Division 3A of Part 2 of the Act.
19. New subsection 140GB(2) provides that the Minister must approve an approved
sponsors nomination if:
in a case to which section 140GBA applies, unless the sponsor is exempt under
section 140GBB or 140GBC - the labour market testing condition under section
140GBA is satisfied; and
in any case - the prescribed criteria are satisfied.
20. Section 140GB of the Act is concerned with the Ministers power to approve
nominations. Relevantly, paragraph 140GB(1)(b) provides that an approved sponsor
may nominate a proposed occupation, program or activity.
21. Subsection 140GB(2) of the Act currently provides that the Minister must approve an
approved sponsors nomination if prescribed criteria are satisfied. The prescribed
criteria for approval of nominations are set out in Division 2.17 of Part 2A of the
Migration Regulations 1994 (the Migration Regulations).
22. The effect of this amendment is that the Minister must be satisfied that the labour
market testing condition under new section 140GBA of the Act is met before
approving a nomination by an approved sponsor. New section 140GBA is inserted by
item 2 below.
23. A note following subsection 140GB(2) provides that section 140GBB provides an
exemption from the labour market testing condition in the case of a major disaster.
Section 140GBC provides for exemptions from the labour market testing condition to
apply in relation to the required skill level and occupation for a nominated position.
This note informs readers that there are exemptions to labour market testing and points
the readers to sections 140GBB and 140GBC of the Act.
Item 2 After section 140GB
24. This item inserts new sections 140GBA, 140GBB and 140GBC after section 140GB in
Subdivision B of Division 3A of Part 2 of the Act.
Section 140GBA
25. The heading to new section 140GBA of the Act is ,,Labour market testing - condition.
26. New subsection 140GBA(1) of the Act provides that this section applies to a
nomination by an approved sponsor, under section 140GB, if:
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the approved sponsor is in a class of sponsors prescribed by the regulations; and
the sponsor nominates:
o a proposed occupation for the purposes of paragraph 140GB(1)(b); and
o a particular position, associated with the nominated occupation, that is to
be filled by a visa holder, or applicant or proposed applicant for a visa,
identified in the nomination; and
it would not be inconsistent with any international trade obligation of Australia
determined under subsection (2) to require the sponsor to satisfy the labour market
testing condition in this section, in relation to the nominated position.
27. The purpose of this provision is to clarify the approved sponsors who must comply
with the labour market testing condition in order for the Minister to approve their
nominations under new subsection 140GB(2) of the Act. The approved sponsor must
be in a class of sponsors prescribed by the Migration Regulations and must have
nominated a proposed occupation in accordance with paragraph 140GB(1)(b) of the
Act.
28. Further, it is intended that the requirement that the approved sponsor satisfy the labour
market testing condition will apply to the extent that the requirement is consistent with
Australias international trade obligations.
29. New subsection 140GBA(2) of the Act provides that for the purposes of paragraph
140GBA(1)(c), the Minister may, by legislative instrument, determine (as an
international trade obligation of Australia) an obligation of Australia under
international law that relates to international trade, including such an obligation that
arises under any agreement between Australia and another country, or other countries.
30. The purpose of this amendment is to ensure that labour market testing cannot be
required of an approved sponsor if to do so would be inconsistent with Australias
international trade obligations as determined by the Minister by legislative instrument.
31. New subsection 140GBA(3) of the Act provides that the labour market testing
condition is satisfied if:
the Minister is satisfied that the approved sponsor has undertaken labour market
testing in relation to the nominated position within a period determined by the
Minister, by legislative instrument, in relation to the nominated occupation; and
the nomination is accompanied by evidence in relation to that labour market
testing; and
the evidence includes the evidence covered by subsection 140GBA(5); and
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having regard to that evidence, the Minister is satisfied that a suitably qualified
and experienced Australian citizen or Australian permanent resident is not readily
available to fill the nominated position.
32. The purpose of this amendment is to clarify the circumstances in which an approved
sponsor will be taken to have satisfied the labour market testing condition in relation to
a particular nomination to which new section 140GBA of the Act applies.
33. New subsection 140GBA(4) of the Act provides that for the purposes of paragraph
140GBA(3)(a), the Minister may, by legislative instrument, determine a period within
which labour market testing is required in relation to a nominated occupation.
34. This provides the Minister with an express power to determine by legislative
instrument the periods in which an approved sponsor would need to conduct labour
market testing based on the nominated occupation.
35. New subsection 140GBA(5) provides that evidence that accompanies the nomination in
relation to labour market testing is evidence consisting of one or more of the following:
information about the approved sponsors attempts to recruit suitably qualified
and experienced Australian citizens or Australian permanent residents to the
position and any other similar positions (see also subsection (6));
copies of, or references to, any research released in the previous 6 months relating
to labour market trends generally and in relation to the nominated occupation;
expressions of support from Commonwealth, State or Territory government
authorities with responsibility for employment matters;
any other type of evidence determined by the Minister, by legislative instrument,
for this paragraph.
36. The purpose of this amendment is to list the types of evidence that must accompany the
nomination in relation to that labour market testing.
37. New subsection 140GBA(6) provides that for paragraph (5)(a) (but without limiting the
paragraph), the information mentioned may include the following:
details of any advertising (paid or unpaid) of the position, and any similar
positions, commissioned or authorised by the approved sponsor;
information about the approved sponsors participation in relevant job and career
expositions;
details of fees and other expenses paid (or payable) for any recruitment attempts
mentioned in paragraph (5)(a) (including any advertising or participation
mentioned in paragraphs (a) and (b) of this subsection);
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details of the results of such recruitment attempts, including details of any
positions filled as a result.
38. The purpose of this amendment is to provide guidance on the kinds of evidence an
approved sponsor may give about the attempts of the approved sponsor to recruit
suitably qualified and experienced Australian citizens or Australian permanent
residents to the nominated position (and any similar positions). However, this provision
is not intended to preclude the approved sponsor from providing other kinds of
evidence in this regard.
39. It would be in the sponsors own interest to provide authenticating detail about
recruitment attempts and other relevant information with a nomination application. If
insufficient detail is given, that could make the case for the nomination less persuasive.
40. New subsection 140GBA(7) of the Act provides definitions for the purposes of new
section 140GBA. New subsection 140GBA(7) provides that in this section:
Australian permanent resident has the meaning given in the regulations.
labour market testing, in relation to a nominated position, means testing of the
Australian labour market to demonstrate whether a suitably qualified and experienced
Australian citizen or Australian permanent resident is readily available to fill the
position.
41. The purpose of this amendment is to provide definitions for the purposes of new
section 140GBA of the Act.
Section 140GBB
42. The heading to new section 140GBB of the Act is ,,Labour market testing - major
disaster exemption.
43. New subsection 140GBB(1) of the Act provides that an approved sponsor is exempt
from the requirement to satisfy the labour market testing condition in section 140GBA
if an exemption under subsection 140GBB(2) is in force in relation to the sponsor.
44. New subsection 140GBB(2) of the Act provides that the Minister may, in writing,
exempt a sponsor from the requirement to satisfy the labour market testing condition in
section 140GBA if the Minister is satisfied that:
an event (a major disaster) has occurred in Australia, whether naturally or
otherwise, that has such a significant impact on individuals that a government
response is required; and
the exemption is necessary or desirable in order to assist disaster relief or
recovery.
45. New subsection 140GBB(3) of the Act provides that in deciding whether a major
disaster has occurred, the Minister must have regard to matters including the following:
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the number of individuals affected;
the extent to which the nature or extent of the disaster is unusual.
46. New subsection 140GBB(4) of the Act provides that an exemption of an approved
sponsor under subsection 140GBB(2):
may be expressed in relation to:
o a specified nomination by the sponsor; or
o a specified class of nominations by the sponsor; and
must be expressed to apply to a particular sponsor specified in the exemption
rather than a class of sponsors, despite subsections 33(3A) and (3AB) of the Acts
Interpretation Act 1901.
47. The purpose of this amendment is to allow an approved sponsor to be exempt from the
requirement to satisfy the labour market testing condition in the event of a major
disaster. This exemption provides the Minister with the flexibility to respond to
situations of national or state emergency and would facilitate the speedy entry of
overseas skilled workers without the delay caused by requiring an approved sponsor to
undertake labour market testing.
48. New subsection 140GBB(5) provides that the exemption made under this section is not
a legislative instrument.
49. Subsection 140GBB(5) is included to assist readers, as the instrument is not a
legislative instrument within the meaning of section 5 of the Legislative Instruments
Act 2003.
Section 140GBC
50. The heading to new section 140GBC of the Act is ,,Labour market testing - skill and
occupational exemptions.
51. New subsection 140GBC(1) of the Act provides that section 140GBC of the Act
applies to a nomination by an approved sponsor, under section 140GB, if the sponsor
nominates a proposed occupation for the purposes of paragraph 140GB(1)(b) and a
particular position, associated with the nominated occupation, that is to be filled by a
visa holder, or applicant or proposed applicant for a visa, identified in the nomination.
52. New subsection 140GBC(2) of the Act provides that the approved sponsor is exempt
from the requirement to satisfy the labour market testing condition in section 140GBA
if:
either or both of the following are required for the nominated position, in relation
to the nominated occupation:
o a relevant bachelor degree or higher qualification;
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o 5 years or more of relevant experience; and
the nominated occupation is specified for the purposes of subsection 140GBC(2)
under subsection 140GBC(4).
53. The purpose of this amendment is to allow an approved sponsor to be exempt from the
requirement to satisfy the labour market testing condition where the nominated position
in relation to the nominated occupation requires either or both a relevant bachelor
degree or higher qualification or 5 years or more of relevant experience and the
nominated occupation is specified under subsection 140GBC(4).
54. Subsection 140GBC(4) of the Act, outlined below, provides power to the Minister to
specify an occupation or occupations. Subsection 140GBC(2) provides for an
exemption from the labour market testing condition on the basis that the nominated
occupation is specified under subsection 140GBC(4) if the nominated position in
relation to the nominated occupation requires either or both a relevant bachelor degree
or higher qualification or 5 years or more of relevant experience.
55. The effect of this amendment is that an exemption from the requirement to satisfy the
labour market testing condition on the basis of the nominated occupation can only
occur if the nominated occupation is specified under subsection 140GBC(4) and the
nominated position in relation to the nominated occupation requires either or both a
relevant bachelor degree or higher qualification or 5 years or more of relevant
experience.
56. The requirement for a relevant bachelor degree or higher qualification and or 5 years or
more relevant experience is because this is the requirements for an occupation to be
classified as Skill Level 1 in the Australian and New Zealand Standard Classification
of Occupations (ANZSCO) which is published by the Australian Bureau of Statistics
and is current on 1 July 2010. A direct reference to ANZSCO is not provided for in the
Act in order to avoid amendments to the Act should ANZSCO be amended to remove
the terminology ,,skill level 1 or the version of ANZSCO is updated. In addition the
description of relevant bachelor degree or higher qualification and/or 5 years or more
relevant experience is easier for the reader to understand what is required to be exempt
from labour market testing under subsection 140GBC(2).
57. New subsection 140GBC(3) of the Act provides that the approved sponsor is exempt
from the requirement to satisfy the labour market testing condition in section 140GBA
if:
either or both of the following are required for the nominated position, in relation
to the nominated occupation:
o a relevant associate degree, advanced diploma or diploma covered by the
AQF;
o 3 years or more of relevant experience; and
the nominated occupation is specified for the purposes of subsection 140GBC(3)
under subsection 140GBC(4).
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58. The purpose of this amendment is to allow an approved sponsor to be exempt from the
requirement to satisfy the labour market testing condition where the nominated position
in relation to the nominated occupation requires either or both a relevant associate
degree, advanced diploma or diploma covered by the AQF or 3 years or more of
relevant experience and the nominated occupation is specified under subsection
140GBC(4).
59. New subsection 140GBC(4) of the Act, outlined below, provides power to the Minister
to specify an occupation or occupations. Subsection 140GBC(3) provides for an
exemption from the labour market testing condition on the basis that the nominated
occupation is specified under subsection 140GBC(4) if the nominated position in
relation to the nominated occupation requires either or both a relevant associate degree,
advanced diploma or diploma covered by the AQF or 3 years or more of relevant
experience.
60. The effect of this amendment is that an exemption from the requirement to satisfy the
labour market testing condition on the basis of the nominated occupation can only
occur if the nominated occupation is specified under subsection 140GBC(4) and the
nominated position in relation to the nominated occupation requires either or both a
relevant associate degree, advanced diploma or diploma covered by the AQF or 3 years
or more of relevant experience.
61. The requirement for both a relevant associate degree, advanced diploma or diploma
covered by the AQF or 3 years or more of relevant experience is because this is the
requirements for an occupation to be classified as Skill Level 2 in the Australian and
New Zealand Standard Classification of Occupations (ANZSCO) which is published
by the Australian Bureau of Statistics and is current on 1 July 2010. A direct reference
to ANZSCO is not provided for in the Act in order to avoid amendments to the Act
should ANZSCO be amended to remove the terminology ,,skill level 2 or the version
of ANZSCO is updated. In addition the description of both relevant associate degree,
advanced diploma or diploma covered by the AQF or 3 years or more of relevant
experience is easier for the reader to understand what is required to be exempt from
labour market testing under subsection 140GBC(3).
62. New subsection 140GBC(4) of the Act provides the Minister may, by legislative
instrument, do any of the following:
for subsection 140GBC(2) and 140GBC(3) - specify an occupation (or
occupations);
63. The purpose of this amendment is to provide power to the Minister to make legislative
instruments for purposes in section 140GBC.
64. Reforms to the Subclass 457 Visa Program are designed to address areas of greatest
risk. Growth in use of the Subclass 457 Visa Program and evidence of inappropriate
use is concentrated in lower skill level and lower paid occupations.
65. New section 140GBC recognises that most occupations classified as Skill Level 1 or
Skill Level 2 in ANZSCO are generally considered to be low risk, and accordingly,
allows the Minister to exempt certain approved sponsors from the requirement to
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undertake labour market testing on the basis of the skill level required for the
nominated occupation.
66. The legislative instrument mechanism provides the Minister with the flexibility to
specify different occupations within the ,,Skill Level 1 and ,,Skill Level 2
classification in ANZSCO to be exempt from labour market testing. This would allow
the Minister to make a legislative instrument to exempt most, but not all, Skill Level 1
occupations and certain Skill Level 2 occupations.
67. New subsection 140GBC(5) of the Act provides that despite subsection 44(2) of the
Legislative Instruments Act 2003, section 42 (disallowance) of that Act applies to an
instrument made under subsection 140GBC(4).
68. Table item 26 of subsection 44(2) of the Legislative Instruments Act 2003 provides that
section 42 does not apply in relation to legislative instruments (other than regulations)
under Part 1, 2 or 9 of the Migration Act 1958, or legislative instruments under Part 1,
2 or 5, or Schedule 1, 2, 4, 5A, 6, 6A or 8, of the regulations made under that Act
unless the instrument or provision is subject to disallowance under its enabling
legislation or by means of some other Act.
69. Section 42 of the Legislative Instruments Act 2003 provides for disallowance of
legislative instruments by a House of Parliament.
70. New section 140GBC is in Division 3A of Part 2 of the Act. Therefore without
subsection 140GBC(5), legislative instruments made under subsection 140GBC(4)
would not be subject to disallowance under section 42 of the Legislative Instruments
Act 2003.
71. The effect of this amendment is to allow either House of the Parliament to disallow the
instruments made under subsection 140GBC(4).
72. New subsection 140GBC(6) of the Act provides that in section 140GBC AQF means
the Australian Qualifications Framework within the meaning of the Higher Education
Support Act 2003.
73. This amendment is to provide a definition of AQF for the purposes of section 140GBC.
Part 2 - Amendment of the Migration Regulations 1994
Item 3 After regulation 2.72
74. This item inserts new regulation 2.72AA after regulation 2.72 in Division 2.17 of Part
2A of the Migration Regulations.
75. New subregulation 2.72AA(1) of the Migration Regulations provides that this
regulation applies in relation to nominations by approved sponsors to which the labour
market testing condition under section 140GBA of the Act must be satisfied (see also
subsection 140GB(2) of the Act).
76. The purpose of this amendment is to clarify that new regulation 2.72AA of the
Migration Regulations applies to nominations by approved sponsors who must satisfy
the labour market testing requirement in new section 140GBA of the Act.
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77. New subregulation 2.72AA(2) of the Migration Regulations provides that for
paragraph 140GBA(1)(a) of the Act, the class of standard business sponsors is a
prescribed class of sponsor.
78. "Standard business sponsor" is defined in regulation 1.03 of the Migration Regulations
as follows:
standard business sponsor means a person who:
is an approved sponsor; and
is approved as a sponsor in relation to the standard business sponsor class by the
Minister under subsection 140E(1) of the Act.
79. "Approved sponsor" is defined in subsection 5(1) of the Act as follows:
approved sponsor means:
a person:
o who has been approved by the Minister under section 140E in relation to a
class prescribed by the regulations for the purpose of subsection 140E(2);
and
o whose approval has not been cancelled under section 140M, or otherwise
ceased to have effect under section 140G, in relation to that class; or
a person (other than a Minister) who is a party to a work agreement.
80. The purpose of this amendment is to clarify that standard business sponsors is a class
of approved sponsors for the purposes of new paragraph 140GBA(1)(a) of the Act.
Standard business sponsors are the relevant class of approved sponsors who may
nominate an occupation in relation to Subclass 457 visa.
81. As result, standard business sponsors must satisfy the labour market testing condition if
they nominate a proposed occupation and particular position associated with the
nominated occupation that is to be filled by a visa holder, applicant or proposed
applicant for a visa identified in the nomination, and the labour market testing would
not be inconsistent with an international trade obligation determined by the Minister
under new subsection 140GBA(2), or is not exempt as a result of a major disaster under
new subsection 140GBB(2) or under new subsection 140GBC(2) on the basis of skills
and occupation.
Part 3 - Saving and application
Item 4 Saving of regulations
82. This item provides that despite the amendment by item 1 of this Schedule, regulations
in force for the purposes of subsection 140GB(2) of the Migration Act 1958
immediately before the commencement of this Schedule continue in effect, on and after
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that commencement, as if they had been made for the purposes of that subsection as in
force after that commencement.
83. As item 1 of this Schedule repeals and substitutes subsection 140GB(2), the purpose of
this item is to ensure that regulations in force for the purposes of subsection 140G(2)
continue in effect, on and after the commencement of this Schedule, as if they had been
made for the purposes of paragraph 140GB(2)(b) of that Act, as in force after that
commencement.
Item 5 Application - nominations by approved sponsors
84. This item provides that the amendments of the Migration Act 1958 and the Migration
Regulations 1994 by Parts 1 and 2 of this Schedule apply in relation to a nomination
under section 140GB of that Act that is made on or after the commencement of Parts 1
and 2 of this Schedule.
85. The purpose of this item is to clarify that new subsection 140GB(2) of the Act, new
sections 140GBA, 140GBB and 140GBC of the Act, and new regulation 2.72AA of the
Migration Regulations, apply in relation to the nomination under section 140GB of the
Act that is made on or after the commencement of those provisions.
Item 6 Application - determined labour market testing periods
86. Subitem 6(1) provides that this item applies if, on or after the commencement of this
Schedule, an approved sponsor makes a nomination under section 140GB of the
Migration Act 1958 to which section 140GBA of that Act (which covers the labour
market testing condition) applies.
87. Subitem 6(2) provides that paragraph 140GBA(3)(a) of the Migration Act 1958 applies
in relation to a period determined for the purposes of that paragraph whether the
period, as applied in relation to the nomination, started before, on or after the day this
Act is given the Royal Assent.
88. The purpose of this item is to clarify that, if the approved sponsor has undertaken
labour market testing within the period determined by the Minister in legislative
instrument for the purposes of new paragraph 140GBA(3)(a) of the Act before the Act
receives the Royal Assent, that can be taken into account for the purposes of
determining whether the approved sponsor has satisfied the labour market testing
requirement in relation to an application for approval of a nomination that is made after
the Act receives the Royal Assent. That is, the determined period may "reach back" to
start before the day after the Royal Assent.
89. For example, if prior to the Act receives the Royal Assent, an approved sponsor
undertook labour market testing in relation to a nominated occupation, that labour
market testing, so long as it is within the determined labour market testing period, can
be taken into account in determining whether the approved sponsor satisfies new
section 140GBA and new subsection 140GBA(2) of the Act in relation to that
particular nomination. This is beneficial to a sponsor as it allows the determined
period to start before the day after the Royal Assent, and would allow a sponsor to
completely satisfy the labour market testing condition by action taken before that time
(but within the determined period).
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Schedule 3 - Subclass 457 visa conditions
Migration Regulations 1994
Item 1 Paragraph 8107(3)(b) and (3B)(b) of Schedule 8
90. This item omits the words "28 consecutive days" from paragraphs 8107(3)(b) and
(3B)(b) of Schedule 8 to the Migration Regulations, and substitutes the words "90
consecutive days".
91. The relevant Part of Schedule 2 to the Migration Regulations sets out the various
conditions that may or must be imposed on the particular visa. The conditions
themselves are set out in Schedule 8 to the Migration Regulations.
92. The conditions that are imposed on the holder of a Temporary Work (Skilled)
(Subclass 457) visa are set out in clause 457.611 of Division 457.6 of Part 457
Schedule 2 to the Migration Regulations. Subclause 457.611(2) provides that if the
applicant satisfies the primary criteria for the grant of a Subclass 457 visa condition
8107 must be imposed.
93. Subclause 8107(3) of Schedule 8 to the Migration Regulations currently provides that
if the visa is, or the last substantive via held by the applicant was, a Subclass 457
(Temporary Work (Skilled)) visa that was granted on the basis that the holder met the
requirements of subclause 457.223(2) or (4)
the holder must:
o work only in the occupation listed in the most recently approved
nomination for the holder; and
o unless the circumstances in subclause (3A) apply - work only for:
the standard business sponsor, former standard business sponsor, party
to a labour agreement or former party to a labour agreement (the
sponsor) who nominated the holder in the most recently approved
nomination; or
if the sponsor is a standard business sponsor or former standard
business sponsor who lawfully operates a business in Australia - an
associated entity of the sponsor; and
if the holder ceases employment - the period during which the holder ceases
employment must not exceed 28 consecutive days.
94. Subclause 8107(3B) of Schedule 8 to the Migration Regulations currently provides that
if the visa is, or the last substantive visa held by the applicant was, a Subclass 457
(Temporary Work (Skilled)) visa that was granted on the basis that the holder met the
requirements of subclause 457.223(8):
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the holder must work only in the occupation or position in relation to which the
visa was granted; and
if the holder ceases employment - the period during which the holder ceases
employment must not exceed 28 consecutive days.
95. The purpose of this amendment is to increase the period of time for which the holder of
a subclass 457 visa to whom paragraph 8107(3)(b) or 8107(3B)(b) of the Migration
Regulations applies can cease to be employed without breaching condition 8107. Such
a person can cease to be employed for up to 90 consecutive days (approximately 3
months) before they will be in breach of the condition.
Item 2 Application
96. This item provides that the amendment of the Migration Regulations 1994 in item 1 of
this Schedule applies in relation to a visa:
that is in force on or after the commencement of this Schedule; and
with effect from the time the visa was granted, whether before, on or after that
commencement.
97. This item makes it clear that the amendments to condition 8107 by item 1 of this
Schedule apply to holders of Subclass 457 visas whose visas were granted on or after
commencement and were in force on the day of commencement. The amendments also
apply to Subclass 457 visa holders whose visas were granted before commencement of
the provisions at the time those visas were granted.
98. The operation of new paragraphs 8107(3)(b) and 8107(3B)(b) is beneficial to Subclass
457 visa holders because, in the event that they cease to be employed, they will have a
longer period within which to obtain further employment before they will be in breach
of condition 8107 than is currently the case.
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Schedule 4 - Sponsorship obligations
Part 1 - Amendments
Migration Act 1958
Item 1 Section 140H (heading)
99. This item repeals the heading to section 140H in Subdivision C of Division 3A of Part
2 of the Act and substitutes a new heading.
100. The new heading to section 140H is ,,Sponsorship obligations - general.
101. This is a consequential amendment as a result of item 6 below which clarifies the
content of the sponsorship obligations for which the Minister must take reasonable
steps to be prescribed in the Migration Regulations for the purposes of section 140H of
the Act.
Item 2 Before subsection 140H(1)
102. This item inserts the heading ,,Requirement to satisfy sponsorship obligations before
subsection 140H(1) in Subdivision C of Division 3A of Part 2 of the Act.
103. This is a consequential amendment as a result of item 6 below which clarifies the
content of the sponsorship obligations for which the Minister must take reasonable
steps to be prescribed in the Migration Regulations for the purposes of section 140H of
the Act.
Item 3 Subsection 140H(1) (note)
104. This item repeals the note to subsection 140H(1) in Subdivision C of Division 3A of
Part 2 of the Act.
105. The note to subsection 140H(1) of the Act provides:
The following are examples of the kinds of sponsorship obligations that might be
prescribed by the regulations:
to pay a minimum wage (however described) to a visa holder sponsored by the
approved sponsor;
to pay to the Commonwealth certain costs, which may include costs of locating
and removing from Australia a visa holder sponsored by the approved sponsor;
to pay the costs of the departure from Australia of a visa holder sponsored by the
approved sponsor;
to comply with the Departments requirements to provide information to the
Department;
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to notify the Department of changes in the circumstances of the sponsor or of a
visa holder sponsored by the approved sponsor;
to cooperate with the Departments monitoring of the approved sponsor or of a
visa holder sponsored by the sponsor.
106. This is a consequential amendment as a result of item 6 below which clarifies the
content of the sponsorship obligations for which the Minister must take reasonable
steps to be prescribed in the Migration Regulations for the purposes of section 140H of
the Act.
Item 4 Before subsection 140H(2)
107. This item inserts the heading ,,Work agreements and sponsorship obligations before
subsection 140H(2) in Subdivision C of Division 3A of Part 2 of the Act.
108. This heading relates to the content of subsections 140H(2) and (3) which deal with
work agreements and sponsorship obligations.
Item 5 Before subsection 140H(4)
109. This item inserts the heading ,,Sponsorship obligations regulations before subsection
140H(4) in Subdivision C of Division 3A of Part 2 of the Act:
110. This heading relates to the content of subsections 140H(4), (5), (6) and (7) which set
out machinery provisions regarding sponsorship obligations regulations made for the
purposes of subsection 140H(1) of the Act.
Item 6 After section 140H
111. This item inserts new section 140HA in Subdivision C of Division 3A of Part 2 of the
Act. New section 140HA sets out the sponsorship obligations for which the Minister
must take all reasonable steps to be prescribed in the Migration Regulations for the
purposes of section 140H.
112. New subsection 140HA(1) of the Act provides that subject to subsection (2), the
Minister must take all reasonable steps to ensure that regulations made under section
504 for the purposes of subsection 140H(1) include obligations in relation to the
following matters:
paying a market salary rate (however described) to a visa holder;
paying prescribed costs to the Commonwealth in relation to locating a former visa
holder, and removing a former visa holder from Australia;
paying prescribed costs of the departure of a visa holder (or a former visa holder)
from Australia;
complying with prescribed requirements to keep information, and provide
information to the Minister;
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notifying the Department of prescribed changes in the circumstances of an
approved sponsor, a former approved sponsor, a visa holder or a former visa
holder;
cooperating with the exercise of powers under or for the purposes of Subdivision
F (which deals with inspector powers);
ensuring that a visa holder participates in an occupation, program or activity
nominated by an approved sponsor (including by preventing the on-hire of a visa
holder);
requiring an approved sponsor or former approved sponsor not to transfer, charge
or recover prescribed costs;
requiring an approved sponsor or former approved sponsor to meet prescribed
training requirements.
113. The purpose of these amendments is to put beyond doubt that, without limiting the
generality of subsection 140H(1) of the Act, the content of the sponsorship obligations
the Minister must take all reasonable steps to ensure these obligations are prescribed in
the regulations. This amendment puts an obligation on the Minister to take all
reasonable steps to ensure there is a sponsorship obligation in relation to each of the
matters listed in subsection 140HA(1) of the Act.
114. It is intended that the Migration Regulations will continue to prescribe the sponsorship
obligations imposed on approved sponsors and former approved sponsors for
subsection 140H(1). New section 140HA complements the sponsorship obligations
currently set out in the Migration Regulations.
115. New subsection 140HA(2) of the Act provides that for any particular matter mentioned
in subsection 140HA(1), the Minister must take all reasonable steps to ensure that the
obligations in the relevant regulations apply in relation to:
all approved sponsors or former approved sponsors; or
a specified class (or classes) of approved sponsors or former approved sponsors,
and not to all approved sponsors or former approved sponsors.
116. This amendment provides flexibility for the Minister to take all reasonable steps to
ensure that sponsorship obligations prescribed in the regulations may apply to all
classes of approved sponsors (or former approved sponsors) or only particular classes
of approved sponsors (or former approved sponsors). This provides consistency with
the sponsorship obligations as currently set out in the Migration Regulations. The
reason for this is that some sponsorship obligations are only relevant to certain classes
of sponsors whereas other sponsorship obligations are relevant to all classes of
sponsors.
117. New subsection 140HA(3) provides that subsection (1) does not limit the sponsorship
obligations that may be prescribed for the purposes of subsection 140H(1).
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118. The effect of new subsection 140HA(3) of the Act is that the ability to prescribe
additional sponsorship obligations in the Migration Regulations in future is retained,
without the need to further amend the Act.
Part 2 - Saving
Item 7 Saving
119. This item provides that the amendments of the Migration Act 1958 made by Part 1 do
not affect the validity of any regulations made under section 504 of that Act for the
purposes of subsection 140H(1) of that Act that are in force immediately before the
commencement of this Schedule.
120. The purpose of this amendment is to make it clear that the amendments made to the
Act by Part 1 of this Schedule do not affect the validity of any sponsorship obligations
prescribed by the Regulations under subsection 140H(1) that were in force immediately
before the commencement of the provisions in this Schedule.
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Schedule 5 - Enforceable undertakings by sponsors
Part 1 - Amendments commencing on day of Royal Assent
Division 1 - Amendments
Migration Act 1958
Item 1 At the end of paragraph 140K(1)(a)
121. This item adds new subparagraphs 140K(1)(a)(iv) and (v) after subparagraph
140K(1)(a)(iii) in the Act.
122. Section 140K of Subdivision D of Division 3A of Part 2 of the Act is concerned with
sanctions for approved sponsors and former approved sponsors for failing to satisfy
sponsorship obligations. Subsection 140K(1) of the Act currently provides that if a
person is an approved sponsor and fails to satisfy an applicable sponsorship obligation,
one or more of the following actions may be taken:
the Minister may do one or more of the following:
o if regulations are prescribed under section 140L, bar the sponsor under
subsection 140M(1) from doing certain things;
o if regulations are prescribed under section 140L, cancel the persons
approval as a sponsor under subsection 140M(1);
o apply for an order for a civil penalty order;
the person may be issued with an infringement notice under regulations made for
the purposes of section 506A as an alternative to proceedings for a civil penalty
order;
an authorised officer may require and take a security under section 269 or enforce
a security already taken under that section.
123. The effect of new subparagraphs 140K(1)(a)(iv) and (v) of the Act is that, if a person is
an approved sponsor and fails to satisfy an applicable sponsorship obligation, the
further following actions may be taken:
the Minister may do one or more of the following:
o accept an undertaking under section 140RA from the person;
o if the Minister considers that the person has breached such an undertaking
- apply for an order under section 140RB.
124. The purpose of this amendment is to provide two additional actions that the Minister
may take against an approved sponsor who fails to satisfy an applicable sponsorship
obligation.
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125. This amendment is a consequential amendment to Item 4 below which inserts new
sections 140RA and 140RB in the Act.
Item 2 Paragraph 140K(2)(a)
126. This item omits "either or both" from paragraph 140K(2)(a) of the Act, and substitutes
"one or more".
127. This amendment is a consequential amendment to Item 3 below which inserts new
subparagraphs 140K(2)(a)(iii) and (iv) in the Act.
Item 3 At the end of paragraph 140K(2)(a)
128. This item adds new subparagraphs 140K(2)(a)(iii) and (iv) in the Act after
subparagraph 140K(2)(a)(ii).
129. Subsection 140K(2) of the Act is concerned with actions that may be taken against
former approved sponsors. Subsection 140K(2) of the Act currently provides that if a
person was an approved sponsor and fails to satisfy an applicable sponsorship
obligation, one or more of the following actions may be taken:
the Minister may do either or both of the following:
o if regulations are prescribed under section 140L, bar the person under
subsection 140M(2) from making future applications for approval;
o apply for an order for a civil penalty order;
the person may be issued with an infringement notice under regulations made for
the purposes of section 506A as an alternative to proceedings for a civil penalty
order;
an authorised officer may require and take a security under section 269 or enforce
a security already taken under that section.
130. The effect of new subparagraphs 140K(2)(a)(iii) and (iv) of the Act is that, if a person
was a former approved sponsor and fails to satisfy an applicable sponsorship
obligation, the further following actions can be taken:
the Minister may do one or more of the following:
o accept an undertaking under section 140RA from the person;
o if the Minister considers that the person has breached such an undertaking
- apply for an order under section 140RB.
131. The purpose of this amendment is to provide two additional actions that the Minister
may take against a former approved sponsor who fails to satisfy an applicable
sponsorship obligation.
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132. This is a consequential amendment to item 4 below which inserts new sections 140RA
and 140RB in the Act.
Item 4 At the end of Subdivision D of Division 3A of Part 2
133. This item inserts new section 140RA at the end of Subdivision D of Division 3A of
Part 2 of the Act.
134. New subsection 140RA(1) of the Act provides that the Minister may accept any of the
following undertakings:
a written undertaking given by a person that the person will, in order to comply
with section 140H in relation to a sponsorship obligation, take specified action;
a written undertaking given by a person that the person will, in order to comply
with section 140H in relation to a sponsorship obligation, refrain from taking
specified action;
a written undertaking given by a person that the person will take specified action
towards ensuring that the person does not contravene section 140H in relation to a
sponsorship obligation, or is unlikely to contravene that section in relation to such
an obligation, in the future.
135. Section 140H of the Act is concerned with sponsorship obligations. Subsection
140H(1) provides that a person who is or was an approved sponsor must satisfy the
sponsorship obligations prescribed by the regulations. Subsection 140H(6) provides
that different kinds of sponsorship obligations may be prescribed for different kinds of
visa (however described) and different classes in relation to which a person may be, or
may have been, approved as a sponsor.
136. The purpose of this amendment is to enhance the enforcement framework relating to
sponsorship in the Act by including enforceable undertakings as an additional
enforcement option in Subdivision D of Division 3A of Part 2 of the Act where there
has been failure by an approved sponsor or former approved sponsor to satisfy an
applicable sponsorship obligation. Enforceable undertakings are promises enforceable
in court which would be agreed to between the Minister (or the Ministers delegate)
and a sponsor, and are designed to secure quick and effective remedies for
contraventions of regulatory provisions.
137. Enforceable undertakings will provide the necessary flexibility to require a person to
take specific action to address the underlying non-compliance issue based on the
circumstances of the individual case. For example, a sponsor who has carelessly failed
to pay the correct wages to Subclass 457 visa holders may agree in an enforceable
undertaking to make reparations to the visa holders and to hire a payroll officer to
ensure that their workers are paid correctly in future.
138. New subsection 140RA(2) of the Act provides that the undertaking must be expressed
to be an undertaking under this section.
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139. This amendment ensures that, if a sponsor gives an undertaking for any of the
circumstances set out in section 140RA of the Act, the undertaking is an undertaking
for the purposes of section 140RA.
140. New subsection 140RA(3) provides that the person may withdraw or vary the
undertaking at any time, but only with the written consent of the Minister.
141. The purpose of this amendment is to make it clear that, while a person can withdraw or
vary the undertaking at any time, they can only do so with the written consent of the
Minister. This ensures that a person cannot withdraw from or vary an undertaking in
circumstances where they have breached the undertaking or are at risk of doing so,
without the consent of the Minister.
142. New subsection 140RA(4) provides that the Minister may, by written notice given to
the person, cancel the undertaking.
143. The purpose of this amendment is to give the Minister the power to cancel an
undertaking by giving written notice to the person who gave the undertaking.
144. New subsection 140RA(5) provides that a consent or notice under this section is not a
legislative instrument.
145. This amendment makes it clear that consent or a written notice under new section
140RA is not a legislative instrument. This provision is declaratory and is not intended
as an exemption to the Legislative Instruments Act 2003, but is intended to assist
readers in the interpretation of this provision.
146. New subsection 140RA(6) provides that the Minister may publish an undertaking on
the Departments website.
147. The purpose of this amendment is to give the Minister the discretion to publish an
undertaking that an approved sponsor or former approved sponsor has given on the
website of the Department of Immigration and Citizenship. As the undertaking will
have been given in circumstances where the approved sponsor or former approved
sponsor fails to satisfy an applicable sponsorship obligation, the publication of the
undertaking draws public attention to the breach, and is designed to deter the approved
sponsor or former approved sponsor from breaching undertakings in future.
148. The published undertaking will not include the personal information of any person or
any other information that may assist in the identification of a person who has provided
the undertaking. This will ensure the privacy of the relevant person is protected.
149. Publication of an enforceable undertaking provides transparency to the Australian
community on the Temporary Sponsored Visa Program as it allows the Australian
community to see that the Minister (or the Ministers delegate) is taking action against
sponsors who fail to comply with sponsorship obligations. It also acts as a deterrent to
other sponsors by publicising the sponsorship obligations, what is inconsistent with the
sponsorship obligations and what action may be taken for failing to satisfy sponsorship
obligations.
150. New section 140RB of the Act deals with the enforcement of undertakings given under
new section 140RA.
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151. New subsection 140RB(1) of the Act provides that the Minister may apply to an
eligible court for an order under subsection (2) if:
a person has given an undertaking under section 140RA; and
the undertaking has not been withdrawn or cancelled; and
the Minister considers that the person has breached the undertaking.
152. The purpose of this amendment is to give the Minister the power to apply to an eligible
court for an order under subsection 140RB(2) of the Act in circumstances where a
person has given an undertaking under new section 140RA, the undertaking has not
been withdrawn or cancelled, and the Minister considers that the person has breached
the undertaking.
153. New subsection 140RB(2) of the Act provides that if the court is satisfied that the
person has breached the undertaking, the court may make any or all of the following
orders:
an order directing the person to comply with the undertaking;
an order directing the person to pay to the Commonwealth an amount up to the
amount of any financial benefit that the person has obtained directly or indirectly
and that is reasonably attributable to the breach;
any order that the court considers appropriate directing the person to compensate
any other person who has suffered loss or damage as a result of the breach;
any other order that the court considers appropriate.
154. The purpose of this amendment is to make it clear that an eligible court may make any
of the orders referred to in new paragraphs 140RB(2)(a) - (d) of the Act in
circumstances where the court is satisfied that a person has breached an undertaking
given by the person under new section 140RA. New paragraph 140RB(2)(d) gives an
eligible court the discretion to make any order that it considers appropriate and that is
not covered by paragraphs 140RB(2)(a) - (c).
Division 2 - Application
Item 5 Application
155. This item provides that the amendments of the Migration Act 1958 made by this Part
apply in relation to a sponsorship obligation whether the obligation arose before, on or
after the commencement of this Part.
156. The purpose of this amendment is to make it clear that the amendments made to the
Act by Part 1 of Schedule 5 (that is, the amendments made to section 140K and new
sections 140RA and 140RB) apply in relation to sponsorship obligations under section
140H, regardless of whether that sponsorship obligation arose before, on or after the
commencement of those provisions.
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Part 2 - Amendments contingent on the commencement of Part 6 of the Regulatory
Powers (Standard Provisions) Act 2013
Division 1 - Amendments
Migration Act 1958
Item 6 Subsection 5(1)
157. This item inserts the following words:
Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2013.
158. The purpose of this amendment is to clarify references to the Regulatory Powers Act
for the purposes of the amendments to the Act made by this Part.
Item 7 Subparagraph 140K(1)(a)(iv)
159. This item will omit the words "section 140RA" from subparagraph 140K(1)(a)(iv) of
the Act on commencement of the Regulatory Powers Act and substitute the words
"section 119 of the Regulatory Powers Act, for the purposes of this Subdivision".
160. New subparagraph 140K(1)(a)(iv) of the Act (inserted by item 1 of Division 1 of Part 1
of Schedule 5 above) essentially provides that if a person is an approved sponsor and
fails to satisfy an applicable sponsorship obligation, the Minister may accept an
undertaking under section 140RA from the person.
161. New section 140RA of the Act (inserted by item 4 of Division 1 of Part 1 of Schedule
5) provides that the Minister may accept any of the following undertakings:
a written undertaking given by a person that the person will, in order to comply
with section 140H in relation to a sponsorship obligation, take specified action;
a written undertaking given by a person that the person will, in order to comply
with section 140H in relation to a sponsorship obligation, refrain from taking
specified action;
a written undertaking given by a person that the person will take specified action
directed towards ensuring that the person does not contravene section 140H in
relation to a sponsorship obligation, or is unlikely to contravene that section in
relation to such obligation, in future.
162. Section 119 of Division 2 of Part 6 of the Regulatory Powers Act (when it
commences) will be concerned with the acceptance of undertakings. Subsection 119(1)
of the Regulatory Powers Act will provide that an authorised person may accept any of
the following undertakings:
a written undertaking given by a person that the person will, in order to comply
with a provision enforceable under this Part, take specified action;
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a written undertaking given by a person that the person will, in order to comply
with a provision enforceable under this Part, refrain from taking specified action;
a written undertaking given by a person that the person will take specified action
directed towards ensuring that the person does not contravene a provision
enforceable under this Part, or is unlikely to contravene such a provision, in the
future.
163. Subsection 119(2) of the Regulatory Powers Act (when it commences) will provide
that the undertaking must be expressed to be an undertaking under this section. Item 11
below will provide that section 140H of the Act is enforceable, in relation to a
sponsorship obligation, under Part 6 of the Regulatory Powers Act.
164. The purpose of this amendment is to substitute the reference to section 140RA of the
Act in subparagraph 140K(1)(a)(iv) with section 119 of the Regulatory Powers Act in
the event that the Regulatory Powers Act commences.
Item 8 Subparagraph 140K(1)(a)(v)
165. This item omits the words "section 140RB" from subparagraph 140K(1)(a)(v) of the
Act, and substitute the words "section 120 of the Regulatory Powers Act, for the
purposes of this Subdivision".
166. New subparagraph 140K(1)(a)(v) of the Act (inserted by Item 1 of Division 1 of Part 1
of Schedule 5 above) essentially provides that if a person is an approved sponsor and
fails to satisfy an applicable sponsorship obligation, the Minister may, if the Minister
considers that the person has breached an undertaking under section 140RA, apply for
an order under section 140RB.
167. New section 140RB of the Act (inserted by item 4 of Division 1 of Part 1 of Schedule
5) provides for the enforcement of undertakings.
168. New subsection 140RB(1) provides that the Minister may apply to an eligible court for
an order under subsection (2) if:
a person has given an undertaking under section 140RA; and
the undertaking has not been withdrawn or cancelled; and
the Minister considers that the person has breached the undertaking.
169. New subsection 140RB(2) of the Act provides that if the court is satisfied that the
person has breached the undertaking, the court may make any or all of the following
orders:
an order directing the person to comply with the undertaking;
an order directing the person to pay to the Commonwealth an amount up to the
amount of any financial benefit that the person has obtained directly or indirectly
and that is reasonably attributable to the breach;
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any order that the court considers appropriate directing the person to compensate
any other person who has suffered loss or damage as a result of the breach;
any other order that the court considers appropriate.
170. Section 120 of Division 2 of Part 6 of the Regulatory Powers Act (when it commences)
will be concerned with the enforcement of undertakings. Subsection 120(1) of the
Regulatory Powers Act will provide that an authorised person may apply to a relevant
court for an order under subsection (2) if:
a person has given an undertaking under section 119; and
the undertaking has not been withdrawn or cancelled; and
the authorised person considers that the person has breached the undertaking.
171. Subsection 120(2) of the Regulatory Powers Act will provide that if the relevant court
is satisfied that the person has breached the undertaking, the court may make any or all
of the following orders:
an order directing the person to comply with the undertaking;
an order directing the person to pay to the Commonwealth an amount up to the
amount of any financial benefit that the person has obtained directly or indirectly
and that is reasonably attributable to the breach;
any order that the court considers appropriate directing the person to compensate
any other person who has suffered loss or damage as a result of the breach;
any other order that the court considers appropriate.
172. Subsection 116(1) of the Regulatory Powers Act will provide that a person is an
authorised person for the purposes of exercising powers under this Part in relation to a
provision if an Act or regulation provides that the person is an authorised person in
relation to that provision for the purposes of this Part.
173. The purpose of this amendment is to substitute the reference to section 140RB of the
Act in subparagraph 140K(1)(a)(v) with section 120 of the Regulatory Powers Act in
the event that the Regulatory Powers Act commences.
Item 9 Subparagraph 140K(2)(a)(iii)
174. This item will omit the words "section 140RA" from subparagraph 140K(2)(a)(iii) of
the Act, and will substitute the words "section 119 of the Regulatory Powers Act, for
the purposes of this Subdivision".
175. New subparagraph 140K(2)(a)(iii) of the Act (inserted by item 3 of Division 1 of Part 1
of Schedule 5) essentially provides that if a person was an approved sponsor and fails
to satisfy an applicable sponsorship obligation, the Minister may accept an undertaking
under section 140RA from the person.
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176. The purpose of this amendment is to substitute the reference to section 140RA of the
Act in subparagraph 140K(2)(a)(iii) with section 119 of the Regulatory Powers Act in
the event that the Regulatory Powers Act commences.
Item 10 Subparagraph 140K(2)(a)(iv)
177. This item omits the words "section 140RB" from subparagraph 140K(2)(a)(iv) of the
Act, and substitutes the words "section 120 of the Regulatory Powers Act, for the
purposes of this Subdivision".
178. New subparagraph 140K(2)(a)(iv) of the Act (inserted by item 3 of Division 1 of Part 1
of Schedule 4) essentially provides that if a person was an approved sponsor and fails
to satisfy an applicable sponsorship obligation, the Minister may apply for an order
under section 140RB if the Minister considers that the person has breached an
undertaking given under section 140RA.
179. The purpose of this amendment is to substitute the reference to section 140RB of the
Act in subparagraph 140K(2)(a)(iv) with section 120 of the Regulatory Powers Act in
the event that the Regulatory Powers Act commences.
Item 11 Sections 140RA and 140RB
180. This item repeals sections 140RA and 140RB of the Act and substitutes new sections
140RA and 140RB.
181. The heading to new section 140RA is ,,Enforceable undertakings.
182. New subsection 140RA(1) will provide that section 140H is enforceable, in relation to
a sponsorship obligation, under Part 6 of the Regulatory Powers Act.
183. Section 140H of the Act is concerned with sponsorship obligations. Subsection
140H(1) provides that a person who is or was an approved sponsor must satisfy the
sponsorship obligations prescribed by the Regulations.
184. Subsection 114(1) of the Regulatory Powers Act will essentially provide that the
principal purpose of Part 6 of the Regulatory Powers Act is to create a framework for
the acceptance and enforcement of undertakings relating to compliance with
provisions. Subsection 114(2) will provide that however, for this Part to operate, a
provision of an Act or a legislative instrument must be made enforceable under this
Part.
185. Section 115 of the Regulatory Powers Act will provide that a provision of an Act or a
legislative instrument is enforceable under this Part if an Act or a regulation provides
that the provision is enforceable under this Part.
186. This purpose of this amendment is to make section 140H of the Act enforceable under
Part 6 of the Regulatory Powers Act in the event that the Regulatory Powers Act
commences.
187. New subsection 140RA(2) will provide that for the purposes of Part 6 of the
Regulatory Powers Act, the Minister is an authorised person in relation to the provision
mentioned in subsection (1).
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188. Subsection 116(1) of the Regulatory Powers Act provides that a person is an authorised
person for the purposes of exercising the powers under this Part in relation to a
provision if an Act or a regulation provides that the person is an authorised person in
relation to that provision for the purposes of this Part.
189. The purpose of this amendment is to clarify that for the purposes of Part 6 of the
Regulatory Powers Act (including the powers in sections 119 and 120 of that Act) the
Minister for Immigration and Citizenship an authorised person in relation to section
140H of Act (as mentioned in subsection 140RA(1)).
190. New subsection 140RA(3) of the Act will provide that for the purposes of Part 6 of the
Regulatory Powers Act, an eligible court is a relevant court in relation to the provision
mentioned in subsection (1).
191. Section 117 of the Regulatory Powers Act will provide that a court is a relevant court
for the purposes of exercising powers under this Part in relation to an undertaking
given in relation to a provision enforceable under this Part, if an Act or a regulation
provides that the court is a relevant court in relation to that provision for the purposes
of this Part.
192. Subsection 5(1) of the Act provides that eligible court means:
the Federal Court; or
the Federal Magistrates Court; or
a District, County or Local Court; or
a magistrates court; or
any other State or Territory court that is prescribed by the regulations.
193. The purpose of this amendment is to clarify that an eligible court within the meaning of
subsection 5(1) of the Act is a relevant court for the purposes of exercising the powers
in Part 6 of the Regulatory Powers Act in relation to an undertaking given in relation to
the sponsorship obligations in section 140H of the Act.
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194. New subsection 140RA(4) of the Act will provide that the authorised person in relation
to the provision mentioned in subsection (1) may publish an undertaking given in
relation to the provision on the Departments website.
195. The purpose of this amendment is to clarify that the Minister (as the authorised person
in relation to section 140H of the Act) may publish an undertaking that a person has
given in relation to section 140H on the website of the Department of Immigration and
Citizenship. It is envisaged that the Minister may publish such an undertaking in
circumstances where the Minister would like to draw public attention to the fact that a
person has given an undertaking (in circumstances where the person has breached a
sponsorship obligation under section 140H).
196. New subsection 140RA(5) will provide that Part 6 of the Regulatory Powers Act, as it
applies in relation to the provision mentioned in subsection (1), extends to a Territory
to which this Act extends.
197. The note to new subsection 140RA(5) of the Act refers readers to section 7 of this Act.
198. Section 7 of the Act makes provision for the Act to extend to certain Territories.
Subsection 7(1) provides that in this section, prescribed Territory means the Coral Sea
Islands Territory, the Territory of the Cocos (Keeling) Islands, the Territory of
Christmas Island and the Territory of Ashmore and Cartier Islands.
199. Subsection 7(2) of the Act provides that this Act extends to a prescribed Territory.
200. Subsection 7(3) provides that subject to this Act, a prescribed Territory:
shall be deemed to be part of Australia for the purposes of this Act; and
shall be deemed not to be a place outside Australia.
201. The purpose of this amendment is to clarify that the provisions in Part 6 of the
Regulatory Powers Act extend to the prescribed Territories within the meaning of
section 7 of the Act in the event that the Regulatory Powers Act commences.
Division 2 - Application and saving
Item 12 Application and saving
202. Subitem 12(1) provides that the amendments of the Migration Act 1958 made by this
Part apply in relation to a sponsorship obligation whether the obligation arose before,
on or after the commencement of this Part.
203. Subitem 12(2) provides that however, sections 140RA and 140RB of the Migration Act
1958 as in force immediately before the commencement of this Part continue to apply,
on or after that commencement, in relation to an undertaking accepted under section
140RA before that commencement.
204. The purpose of this amendment is to make it clear that the amendments made to the
Act by Part 2 of Schedule 5 (that is, the amendments made to section 140K and
sections 140RA and 140RB) apply in relation to a sponsorship obligation under section
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140H, regardless of whether that sponsorship obligation arose before, on or after the
commencement of this Part.
205. However, if the Minister accepted an undertaking under section 140RA, the Minister
applies to an eligible court for an order under subsection 140RB(1) or an eligible court
made an order under subsection 140RB(2) before the commencement of the
amendments made by Part 2 of Schedule 5, those applications and orders remain
enforceable after the commencement of those amendments.
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Schedule 6 - Sponsorship inspector powers
Part 1 - Amendments
Migration Act 1958
Item 1 Subsection 5(1)
206. This item inserts three new definitions into subsection 5(1) of the Act in Part 1 of the
Act.
207. The new definitions are as follows:
appointed inspector has the meaning given by section 140V;
Fair Work Inspector has the same meaning as in the Fair Work Act 2009; and
Inspector has the meaning given by section 140V.
208. The purpose of this amendment is to insert new definitions for the purposes of
Subdivision F of Division 3A of Part 2 of the Act (which deals with inspector powers).
Item 2 Subdivision F of Division 3A of Part 2 (heading)
209. This item repeals the heading to Subdivision F of Division 3A of Part 2 of the Act, and
substitutes a new heading.
210. The current heading to Subdivision F of Division 3A of Part 2 of the Act is
,,Subdivision F - Inspectors.
211. The new heading to Subdivision F of Division 3A of Part 2 of the Act is ,,Subdivision F
- Inspector Powers.
212. This is a consequential amendment to clarify that the provisions in Subdivision F of
Division 3A of Part 2 of the Act are concerned with more than just the appointment of
inspectors. That is, those provisions are also concerned with the powers of inspectors
and persons assisting inspectors, when the powers of inspectors may be exercised, the
purpose for which the powers of inspectors may be exercised, self-incrimination and
the disclosure of certain information by the Secretary of the Department of
Immigration and Citizenship.
Item 3 Before section 140V
213. This item inserts new section 140UA before section 140V in Subdivision F of Division
3A of Part 2 of Act.
214. New section 140UA of the Act is concerned with the exercise of inspector powers in
Subdivision F of Division 3A of Part 2 of the Act.
215. New subsection 140UA(1) of the Act provides that an inspector may exercise powers
under this Subdivision for a purpose set out in section 140X.
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216. Section 140X of the Act sets out the purpose for which powers of inspectors may be
exercised. Section 140X currently provides that the powers of an inspector under this
Subdivision may be exercised:
for the purpose of determining whether a sponsorship obligation is being, or has
been complied with; or
for a purpose prescribed by the regulations.
217. Additional purposes are prescribed in regulation 2.102C of the Migration Regulations
for paragraph 140X(b) of the Act.
218. The purpose of this amendment is to clarify that an inspector may exercise the powers
under Subdivision F of Division 3A of Part 2 of the Act for a purpose set out in section
140X of the Act.
219. The note after subsection 140UA(1) of the Act informs readers that inspectors include
Fair Work Inspectors and points readers to section 140V of the Act.
220. New subsection 140UA(2) of the Act provides that a Fair Work Inspector may, subject
to section 706 of the Fair Work Act 2009, exercise compliance powers under
Subdivision D of Division 3 of Part 5-2 of that Act for the purposes of Subdivision F of
Division 3A of Part 2 of the Act.
221. The purpose of this amendment is to make it clear that a Fair Work Inspector may
exercise their powers in the Fair Work Act for the purposes of Subdivision F of
Division 3A of Part 2 of the Act and the regulations made under that Subdivision.
222. The note after new subsection 140UA(2) of the Act provides that under paragraph
706(1)(d) of the Fair Work Act 2009, a Fair Work Inspector may exercise certain
compliance powers for the purposes of a provision of another Act that confers
functions or powers on Fair Work Inspectors.
Item 4 Before subsection 140V(1)
223. This item inserts new subsection 140V(1A) before subsection 140V(1) in Subdivision
F of Division 3A of Part 2 of the Act. It also inserts the heading "Who is an
inspector?" before the new subsection.
224. Section 140V of the Act deals with the appointment of inspectors. Subsection 140V(1)
provides that the Minister may, by written instrument:
appoint a person to be an inspector; or
appoint a class of persons to be inspectors.
225. Subsection 140V(2) of the Act provides that a person, or a class of persons, is
appointed for the period specified in the instrument of appointment, which must not be
longer than the period specified in the regulations made for the purposes of this
subsection. Regulation 2.102A of the Regulations provides that for subsection 140V(2)
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of the Act, the period specified in an instrument of appointment issued under
subsection 140V(1) of the Act must not exceed 4 years.
226. Subsection 140V(3) of the Act provides that an inspector has the powers conferred on
an inspector by this Division, or the regulations, that are specified in his or her
instrument of appointment.
227. New subsection 140V(1A) of the Act provides that for the purposes of this Act, each of
the following is an inspector:
a person, or a member of a class of persons, appointed under subsection (1) (an
appointed inspector);
a Fair Work Inspector.
228. The item also inserts the heading "Appointed inspectors" after the new subsection.
229. The purpose of this new subsection is to make it clear that a person appointed as a Fair
Work Inspector under the Fair Work Act is also an Inspector for the purposes of
Division 3A of Part 2 of the Act.
Item 5 Subsection 140V(2)
230. This item omits the words "A person, or a class of persons,", and substitutes the words
"An appointed inspector".
231. This is a consequential amendment as a result of the amendment made by item 4 above
which relevantly provides that a person, or a member of a class of persons, appointed
under subsection 140V(1) is an appointed inspector.
Item 6 Subsection 140V(3)
232. This item omits the words "An inspector" from subsection 140V(3) of the Act, and
substitutes the words "An appointed inspector".
233. This is a consequential amendment as a result of the amendment made by item 4 above
which relevantly provides that a person, or a member of a class of persons, appointed
under subsection 140V(1) is an appointed inspector.
Item 7 Section 140V (before the note)
234. This item inserts new subsections 140V(4) and (5) and a heading to new subsection
140V(4) in Subdivision F of Division 3A of Part 2 of the Act.
235. New subsection 140V(4) of the Act (and the heading to that subsection) provide:
Fair work inspectors
An inspector who is a Fair Work Inspector has the powers conferred on an inspector by
this Division or by the regulations.
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236. Paragraph 706(1)(d) of Subdivision D of Division 3 of Part 5 - 2 of the Fair Work Act
provides that Fair Work Inspectors may exercise their compliance powers for the
purposes of a provision of another Act that confers functions or powers on Fair Work
Inspectors.
237. The purpose of this provision is to make it clear that a Fair Work Inspector may
exercise the power in Division 3A of Part 2 of the Act and the regulations made under
that Division.
238. New subsection 140V(5) of the Act provides that a Fair Work Inspector continues to be
an inspector for the purposes of this Act while he or she continues to be a Fair Work
Inspector (under the Fair Work Act 2009).
239. The purpose of this provision is to make it clear that a Fair Work Inspector continues to
be an inspector for the purposes of investigating compliance with Division 3A of Part 2
of the Act and the regulations made under that Division for as long as they are a Fair
Work Inspector under the Fair Work Act.
Item 8 Before subsection 140W(1)
240. This item inserts a new heading and subsection 140W(1A) before subsection 140W(1)
in Subdivision F of Division 3A of Part 2 of the Act.
241. Section 140W of the Act is concerned with identity cards for inspectors. Subsection
140W(1) provides that the Minister must issue an identity card to an inspector.
242. New subsection 140W(1A) of the Act provides that an inspectors identity card is:
for an appointed inspector - the identity card issued to the inspector under
subsection (1); or
for an inspector who is a Fair Work Inspector - the identity card issued to the
inspector under the Fair Work Act 2009 (see section 702 of that Act).
243. This amendment clarifies what type of identity card is issued to an inspector. An
identity card is issued to an appointed inspector under subsection 140W(1) of the Act,
while an identity card is issued to a Fair Work Inspector under section 702 of the Fair
Work Act.
Item 9 Subsection 140W(1) (heading)
244. This item repeals the heading to subsection 140W(1) in Subdivision F of Division 3A
of Part 2 of the Act and substitutes a new heading.
245. The current heading to subsection 140W(1) of the Act is ,,Issue of identity card.
246. The new heading to subsection 140W(1) of the Act is ,,Identity cards - appointed
inspectors.
247. This is a consequential amendment as a result of the amendment made by item 4 above
which provides that a Fair Work Inspector is an inspector for the purposes of the Act,
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and the amendment made by item 10 below which omits "an inspector" from
subsection 140W(1) and substitutes the words "an appointed inspector".
Item 10 Subsection 140W(1)
248. This item omits the words "an inspector" from subsection 140W(1) of the Act, and
substitutes the words "an appointed inspector".
249. The purpose of this amendment is to clarify that the requirement in subsection
140W(1) of the Act that the Minister must issue an identity card applies to an inspector
appointed under subsection 140W(1) and not to a Fair Work Inspector appointed under
the Fair Work Act.
Item 11 Subsection 140W(2) (heading)
250. This item repeals the heading to subsection 140W(2) in Subdivision F of Division 3A
of Part 2 of the Act.
251. The heading to subsection 140W(2) of the Act is ,,Form of identity card.
252. This amendment, together with the amendment made to subsection 140W(2) of the Act
by item 10 above, reflects the fact that there will be more than one form of identity card
and that identity cards issued to inspectors appointed by the Minister under subsection
140W(1) are different to identity cards issued to Fair Work Inspectors under the Fair
Work Act.
Item 12 Subsection 140W(2)
253. This item inserts the words "for an appointed inspector" after the words "identity card"
in subsection 140W(2) in Subdivision F of Division 3A of Part 2 of the Act.
254. Subsection 140W(2) of the Act currently provides that an identity card must be in the
form prescribed by the regulations, and must contain a recent photograph of the
inspector.
255. Regulation 2.102B of the Migration Regulations provides that for paragraph
140W(2)(a) of the Act, an identity card must be:
in accordance with prescribed Form 4; or
the form approved by the Fair Work Ombudsman under subsection 702(3) of the
Fair Work Act 2009; and
may include additional information that is not set out in the form mentioned in
paragraph (a).
256. The purpose of this amendment is to clarify that the requirement that an identity card
be in the form prescribed by the regulations applies only to an identity card issued to an
inspector appointed under the Act, and to not an identity card issued to a Fair Work
Inspector appointed under the Fair Work Act.
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Item 13 Paragraph 140W(4)(a)
257. This item inserts the words "under subsection (1)" after the words "identity card" in
paragraph 140W(4)(a) of the Act.
258. Subsection 140W(4) of the Act provides that a person commits an offence if:
the person has been issued with an identity card; and
the person ceases to be an inspector; and
the person does not return his or her identity card to the Secretary within 14 days
after ceasing to be an inspector.
Penalty: 1 penalty unit.
259. The purpose of this amendment is to clarify that only a person who has been issued
with an identity card under subsection 140W(1) will commit an offence under
subsection 140W(4) if they cease to be an inspector and do not return their identity
card to the Secretary within 14 days after ceasing to be an inspector.
Item 14 Paragraph 140X(a)
260. This item omits the word "determining" from paragraph 140X(a) of the Act, and
substitutes the word "investigating".
261. Section 140X of the Act is concerned with the purpose for which powers of inspectors
may be exercised. Section 140X provides that the powers of an inspector under this
Subdivision may be exercised:
for the purpose of determining whether a sponsorship obligation is being, or has
been, complied with; or
for a purpose prescribed by the regulations.
262. This is a consequential amendment as a result of the amendment made by item 15
below which inserts new paragraph 140X(aa) in the Act. The term ,,investigating
more accurately describes the purpose for which powers of inspectors are used.
Item 15 After paragraph 140X(a)
263. This item inserts new paragraph 140X(aa) in Subdivision F of Division 3A of Part 2 of
the Act.
264. New paragraph 140X(aa) of the Act provides that the powers of an inspector under this
Subdivision may be exercised:
for the purpose of investigating whether a person who is required under subsection
140H(1) to satisfy a sponsorship obligation has committed an offence, or
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contravened a civil penalty provision, under Subdivision C of Division 12 of
Part 2.
265. New paragraph 140X(aa) of the Act expands the purpose for which an inspector may
exercise powers under Subdivision F of Division 3A of Part 2 of the Act.
266. This item provides that it is the role of an inspector to investigate whether a person has
committed an offence, or contravened a civil penalty provision, under Subdivision C of
Division 12 of Part 2 of the Act (which sets out the criminal penalties and civil
penalties for allowing an unlawful non-citizen to work, allowing a lawful non-citizen to
work in breach of a work-related visa condition, referring an unlawful non-citizen to a
third person for work, or referring a lawful non-citizen to a third person for work in
breach of a work-related visa condition). This primarily involves the inspector
gathering information relevant to the possible commission of such an offence or the
possible contravention of such a civil penalty provision. Information gathered by
inspectors, including Fair Work Inspectors, would be referred to the relevant area
within the Department of Immigration and Citizenship to determine whether further
action under Subdivision C of Division 12 of Part 2 of the Act should be taken.
267. This amendment extends the purposes for which an inspector may exercise their
powers under Division 3A of Part 2 of the Act. It is reasonable, proportionate and
necessary to extend the powers in this way to allow the Department of Immigration and
Citizenship to have a holistic view of all visa programs, not just the Temporary
Sponsored Visa Program, which a sponsor is utilising.
268. Further, a circumstance prescribed under section 140L of the Act for certain classes of
sponsors is that the sponsor has been found by a court or a competent authority to have
contravened a Commonwealth, State or Territory Law. The offences and civil
penalties in Subdivision C of Division 12 of Part 2 of the Act are Commonwealth law.
269. Section 140M of the Act provides that if regulations are prescribed under section 140L
of the Act, the Minister may (or must) take action to cancel the approval of a person as
a sponsor in relation to the class or all classes to which the sponsor belongs, bar the
sponsor from sponsoring more people under existing specified approvals or bar the
sponsor (or former approved sponsor) from making future applications for approval as
a sponsor in relation to one or more classes of sponsor. Therefore it is relevant as to
whether a sponsor or former approved sponsor has committed an offence, or
contravened a civil penalty provision, under Subdivision C of Division 12 of Part 2 of
the Act.
Item 16 Section 140XC
270. This item omits the words "An inspector" from section 140XC of the Act, and
substitutes the words "(1) An inspector".
271. This is a consequential amendment as a result of the amendment made by item 17
below which inserts new subsection 140XC(2) in the Act.
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Item 17 Section 140XC (before the note)
272. This item inserts new subsection 140XC(2) in Subdivision F of Division 3A of Part 2
of the Act.
273. Section 140XC of the Act is concerned with the powers of inspectors while on
premises or at a place.
274. Subsection 140XC(1) of the Act provides that an inspector who enters premises or a
place under section 140XB may exercise one or more of the following powers while on
the premises or at the place:
inspect any work, process or object;
interview any person;
require a person to tell the inspector who has custody of, or access to, a record or
document;
require a person who has the custody of, or access to, a record or document to
produce the record or document to the inspector either while the inspector is on
the premises or at the place, or within a specified period;
inspect, and make copies of, any record or document that is kept on the premises
or at the place, or is accessible from a computer that is kept on the premises or at
the place.
275. New subsection 140XC(2) of the Act provides that a Fair Work Inspector who enters
premises or a place under the Fair Work Act 2009 for any compliance purpose under
section 706 of that Act may, for a purpose mentioned in section 140X of this Act,
exercise any of the powers mentioned in subsection (1) of this section while on the
premises or at the place.
276. The purpose of this amendment is to clarify that a Fair Work Inspector who enters
premises or a place under the Fair Work Act for a compliance purpose in section 706 of
that Act may exercise any of the powers mentioned in subsection 140XC(1) of the Act
for a purpose in section 140X.
Item 18 Subsection 140XD(1)
277. This item repeals subsection 140XD(1) of the Act and substitutes new subsection
140XD(1) in Subdivision F of Division 3A of Part 2 of the Act.
278. Section 140XD of the Act is concerned with persons assisting inspectors. Subsection
140XD(1) of the Act provides that a person (the assistant) may accompany the
inspector onto the premises or the place to assist the inspector if the Secretary is
satisfied that:
the assistance is necessary and reasonable; and
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the assistant has suitable qualifications and experience to properly assist the
inspector.
279. Subsection 140XD(2) of the Act provides that the assistant:
may do such things on the premises or at the place as the inspector requires to
assist the inspector to exercise powers under this Subdivision; but
must not to anything that the inspector does not have power to do.
280. Subsection 140XD(3) of the Act provides that anything done by the assistant is taken
for all purposes to have been done by the inspector.
281. New subsection 140XD(1) of the Act provides:
A person (the assistant) may accompany an inspector onto premises or to a place
mentioned in subsection 140XC(1) to assist the inspector if:
for any inspector - the Secretary is satisfied that:
o the assistance is necessary and reasonable; and
o the assistant has suitable qualifications and experience to properly assist
the inspector; or
for an inspector who is a Fair Work Inspector - the assistant is authorised to
accompany the inspector onto the premises or to the place under section 710 of the
Fair Work Act 2009 for any compliance purpose under section 706 of that Act.
282. The purpose of this amendment is to provide that a Fair Work assistant may
accompany a Fair Work Inspector onto premises or a place mentioned in subsection
140XC(1) if the assistant is authorised to accompany the inspector onto the premises or
to the place under section 710 of the Fair Work Act for any compliance purpose under
section 706 of that Act.
Part 2 - Application
Item 19 Application of amendments
283. Subitem 19(1) provides that the amendments of the Migration Act 1958 made by Part 1
of this Schedule apply in relation to:
a person who is a Fair Work Inspector, whether the person became such an
inspector before, on or after the commencement of the amendments; and
the exercise of a power, or the performance of a function, by an inspector under
the Migration Act 1958 on or after the commencement of the amendments; and
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the exercise of a compliance power by a Fair Work Inspector under Subdivision D
of Division 3 of Part 5-2 of the Fair Work Act 2009 on or after the commencement
of the amendments.
284. The purpose of these amendments is to clarify that the amendments made by Part 1 of
Schedule 6 apply to a person who became a Fair Work Inspector before the
commencement of the amendments, as well as to a person who becomes a Fair Work
Inspector on or after the commencement of the amendments.
285. The amendments also clarify that the amendments made by Part 1 of Schedule 6 apply
to the exercise of a power, or the performance of a function, by an inspector under the
Act on or after the commencement of the amendments, and to the exercise of a
compliance power by a Fair Work Inspector under Subdivision D of Division 3 of Part
5-2 of the Fair Work Act on or after the commencement of the amendments.
286. Subitem 19(2) provides that the amendments of the Migration Act 1958 made by Part 1
of this Schedule apply in relation to the powers and functions mentioned in paragraph
(1)(b) and (c) of this item whether they are exercised or performed in relation to
conduct, an event or circumstances that occurred or started occurring before, on or after
the commencement of the amendments.
287. The purpose of these amendments is to clarify that, although the powers and functions
mentioned in paragraphs 19(1)(b) and (c) can themselves only be exercised on or after
the amendments made by Part 1 of Schedule 6 commence, those powers and functions
can be exercised in respect of conduct, events or circumstances that occurred or started
to occur before the amendments commenced.
288. For example, a Fair Work Inspector who enters premises or a place under the Fair
Work Act for a compliance purpose mentioned in section 706 of that Act may exercise
a power in new subsection 140XC(2) of the Act for a purpose mentioned in section
140X only after the commencement of new subsection 140XC(2). That is, the Fair
Work Inspector could exercise the power in new subsection 140XC(1)(b) of the Act to
interview any person for the purpose of investigating whether a sponsorship obligation
is being, or has been, complied with after new subsection 140XC(2) commences.
However, the interview can relate to the possible breach of the sponsorship obligation
by the person that occurred before the commencement of new subsection 140XC(2).
289. The amendments in subitem 19(2) do not result in a retrospective operation of these
amendments as they do not apply the new powers and functions with effect from a time
before commencement. The amendments only allow the law to operate in the future,
that is from the time of commencement of the new powers and functions, in relation to
an investigation of a thing that has happened in the past.
290. The amendments will operate in this way as compliance with a sponsorship obligation
is an on-going requirement and in some situations a failure to satisfy a sponsorship
obligation is not limited to one particular event.
Attachment A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration Amendment (Temporary Sponsored Visas) Bill 2013
This Bill 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 Legislative Instrument
The Bill will amend the Migration Act 1958 (the Migration Act) to strengthen the integrity of
the Temporary Sponsored Visa Program (of which Subclass 457 visas are a part.
The Bill amends the Migration Act to:
reinforce the purpose of Division 3A of Part 2 of the Migration Act relating to
sponsorship;
require prescribed classes of sponsors to undertake labour market testing in relation to
a nominated occupation in a manner consistent with Australias international trade
obligations;
provide the evidence for labour market testing which is to accompany an application
for a nomination;
provide exemptions from labour market testing in circumstances where there has been
a major disaster, or the skill level of the nominated occupation is equivalent to Skill
level 1 or Skill Level 2 as provided for in the Australian and New Zealand Standard
Classification of Occupations (ANZSCO);
in relation to exemptions from labour market testing- provide for the Minister, by way
of legislative instrument, to specify the occupations and for such legislative
instruments to be subject to disallowance by either House of the Parliament;
enshrine the kinds of sponsorship obligations for which the Minister must take
reasonable steps to ensure are prescribed in the Migration Regulations 1994 (the
Migration Regulations);
enhance the enforcement framework in relation to sponsorship to include enforceable
undertakings between the Minister and an approved sponsor or former approved
sponsor and the enforcement of those undertakings;
empower Fair Work Inspectors to be Inspectors under the Migration Act;
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clarify that entry to premises under the Fair Work Act 2009 will enable a Fair Work
Inspector to exercise powers under the Migration Act; and
provide that an additional purpose for exercising inspector powers under the
Migration Act is to determine whether a person who is or was an approved sponsor
has contravened a civil penalty provision in or committed an offence against relevant
provisions of the Migration Act relating to work (employer sanctions provisions).
The Bill also amends the Migration Regulations to prescribe:
standard business sponsors as the class of sponsor which is required to undertake
labour market testing in relation to a nominated occupation; and
extend the period in which a Subclass 457 visa holder subject to visa condition 8107
can seek new sponsored employment from 28 consecutive days to 90 consecutive
days.
Human rights implications
Right to Work
This Bill seeks to prioritise the employment opportunities of Australian citizens and
Australian permanent residents and is directly relevant to the right to work in Article 6 of the
International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 6
provides:
The States Parties to the present Covenant recognize the right to work, which includes
the right of everyone to the opportunity to gain his living by work which he freely
chooses or accepts, and will take appropriate steps to safeguard this right.
In relation to Australian citizens and Australian permanent residents, the measure clearly
supports the Australian Governments recognition of the right to work, by according
preference to those seeking an opportunity to work. The United Nation Committee on
Economic, Social and Cultural Rights (UNCESCR), in its General Comment on Article 6
(E/C.12/GC/19) has stated (at 4):
,,The right to work, as guaranteed in the ICESCR, affirms the obligation of States
parties to assure individuals their right to freely chosen or accepted work, including
the right not to be deprived of work unfairly. This definition underlines the fact that
respect for the individual and his dignity is expressed through the freedom of the
individual regarding the choice to work, while emphasizing the importance of work
for personal development as well as for social and economic inclusion.
As a priority is accorded to Australian citizens and Australian permanent residents in the
labour market testing (LMT) process, this consequently means that effectively foreign
nationals who are seeking temporary employment in Australia are not able to be sponsored
until the LMT process is completed. As well as being relevant to the right to work, this also
is relevant to Article 2.2 of the ICESCR (non-discrimination).
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Before any assessment of these obligations takes place, it is instructive to see whether the
UNCESCRs General Comment addresses this issue. The General Comment relevantly
provides (at 18):
,,The principle of non-discrimination as set out in article 2.2 of the Covenant [...]
should apply in relation to employment opportunities for migrant workers and their
families. In this regard the Committee underlines the need for national plans of action
to be devised to respect and promote such principles by all appropriate measures,
legislative or otherwise.
It is the long standing position of the Australian Government that an authority from the
Australian Government needs to be granted before a non-citizen is permitted to work. This
authority and associated ,,work rights are attached to certain types of visas, including the
Subclass 457 visa. A person is not permitted to work in Australia unless work rights have
been granted, and merely by arriving lawfully in Australia does not entitle a person to work
rights in the absence of a visa with work rights.
The work rights of temporary non-citizens may be conditioned or limited on a case by case
basis. What the Bill seeks to do is to ensure that Australian Citizens and Australian
permanent residents are provided an ability to seek employment opportunities before a
foreign national seeking to come to Australia on a temporary basis can be sponsored and
apply for a subclass 457 visa.
Article 4 of ICESCR provides that the State may subject the rights enunciated in the
ICESCR:
,,...only to such limitations as are determined by law only insofar as this may be
compatible with the nature of these rights and solely for the purpose of promoting the
general welfare in democratic society.
The limitations imposed by the LMT regime are legitimate, reflecting and justified by Article
4, for the principle reason that they are for the ,,purpose of promoting the general welfare in a
democratic society. In other words, the measure will ensure that persons who are in
Australia permanently are given the opportunity to seek work before those seeking to work
and live in Australia only on a temporary basis. Such a limitation, noting the discussion in
relation to Article 6 above, is permissible.
Article 2.2 provides:
,,The States Parties to the present Covenant undertake to guarantee that the rights
enunciated in the present Covenant will be exercised without discrimination of any
kind as to race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.
Non-discrimination
The Bill engages Article 2.1 of the ICCPR and Article 2.2 of the ICESCR which guarantee
the rights enshrined in the Covenants to all people without discrimination.
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Each State Party to the present Covenant undertakes to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the rights recognized in
the present Covenant, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin, property, birth
or other status.
In its General Comment on Article 2 (E/C.12/GC/20), UNCESCR has stated (at 13) that:
Differential treatment based on prohibited grounds will be viewed as discriminatory
unless the justification for differentiation is reasonable and objective. This will
include an assessment as to whether the aim and effects of the measures or omissions
are legitimate, compatible with the nature of the Covenant rights and solely for the
purpose of promoting the general welfare in a democratic society. In addition, there
must be a clear and reasonable relationship of proportionality between the aim sought
to be realized and the measures or omissions and their effects.
The object of the Migration Act is to "regulate, in the national interest, the coming into, and
presence in, Australia of non-citizens". In that sense the purpose of the Act is to differentiate
on the basis of nationality between non-citizens and citizens. Most nation-states differentiate
on the basis of nationality in some form to regulate the right to work. The UN Human Rights
Committee has recognised in the ICCPR context that "The Covenant does not recognize the
right of aliens to enter or reside in the territory of a State party. It is in principle a matter for
the State to decide who it will admit to its territory [...] Consent for entry may be given
subject to conditions relating, for example, to movement, residence and employment" (CCPR
General Comment 15, 11 April 1986).
As the Bill seeks to accord priority to Australian citizens and Australian permanent residents,
the question is whether this exclusion amounts to discrimination. Arguably the measure is
targeted to national origin (i.e. origin in countries other than Australia). However, for the
reasons stated above in order to give effect to Article 6 and Article 4 of ICESCR in relation to
Australian citizens and Australian permanent residents the measure is legitimate, reasonable
and proportionate. Furthermore, it does not seek to preclude foreign nationals from entering
and working temporarily in Australia, but rather conditions that ability with the reasonable
and proportionate measures in the Bill.
Privacy
This Bill allows the Minister for Immigration and Citizenship to publish details of an
enforceable undertaking made under section 140RA of the Migration Act on the
Departments website. This engages article 17 of the ICCPR which states:
No one shall be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence, nor to unlawful attacks on his honour and
reputation.
This is legitimate, proportionate and reasonable in providing transparency to the Australian
community on the Temporary Sponsored Visa Program. It allows the Australian community
to see that the Minister (or the Ministers delegate) is taking action against sponsors who fail
to comply with sponsorship obligations. It also acts as a deterrent to other sponsors by
publicising the sponsorship obligations, what is inconsistent with the sponsorship obligations
and what action may be taken for failing to satisfy sponsorship obligations.
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The published undertaking will not include the personal information of any person or any
other information that may assist in the identification of a person who has provided the
undertaking. This will ensure the privacy of the relevant person is protected.
This Bill also expands the purposes for which an inspector appointed under section 140V of
the Migration Act may exercise inspector powers, to provide that inspector powers may be
used to investigate compliance with employer sanctions provisions. This is to give Fair Work
inspectors (including the Fair Work Ombudsman) and inspectors appointed the necessary
powers and functions to investigate compliance. This engages article 17 of the ICCPR which
states:
No one shall be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence, nor to unlawful attacks on his honour and
reputation.
The provisions include powers to enter premises, powers of inspection and search and
seizure. These provisions are legitimate, proportionate and reasonable in ensuring the
integrity of the Temporary Sponsored Work Visa Program and providing necessary powers
and functions to investigate compliance with Temporary Sponsored Work Visa Program.
There are safeguards in place regarding inspectors and their roles including the requirement
to show identity cards they must not enter premises that is used for residential purposes
unless they reasonably believe that work is being performed on that part of the premises.
Self-incrimination
Section 140XG of the Migration Act currently removes the privilege of self-incrimination by
requiring individuals to provide certain information even where it may incriminate them. This
engages Article 14(3)(g) of the ICCPR that states:
3. In the determination of any criminal charge against him, everyone shall be entitled
to the following minimum guarantees, in full equality:
(g) Not to be compelled to testify against himself or to confess guilt.
It is important to note that the following safeguards currently in place under sections 140XG
and 140XH of the Migration Act:
Section 140XG:
(2) However, in the case of an individual, none of the following are admissible in
evidence against the individual in criminal proceedings:
(a) the record or document produced;
(b) producing the record or document;
(c) any information, document or thing obtained as a direct or indirect
consequence of producing the record or document;
except in proceedings for an offence against section 137.1 or 137.2 of the
Criminal Code (false or misleading information or documents) in relation to
the information or document.
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Section 140XH:
The following are not admissible in evidence in criminal proceedings against an
individual:
(a) any record or document inspected or copied under paragraph
140XC(e) of which the individual had custody, or to which the
individual had access, when it was inspected or copied;
(b) any information, document or thing obtained as a direct or indirect
consequence of inspecting or copying a record or document of which
the individual had custody, or to which the individual had access, when
it was inspected or copied under paragraph 140XC(e).
Similar provisions are present in the Fair Work Act 2009 to ensure there is consistency
should Fair Work inspectors be exercising power under the Migration Act. To the extent that
section 140XG engages Article 14(3)(g) of the ICCPR, it is legitimate, proportionate and
reasonable in its objective and providing the necessary powers and functions to investigate
compliance with the Temporary Sponsored Work Visa Program and provides specific
safeguards to ensure Article 14(3)(g) is not limited in criminal proceedings.
Conclusion
The Bill is compatible with human rights insofar as any limitations upon Article 6 of the
ICESCR comply with limitation requirements in Article 4 of the ICESCR. Further, although
arguable that the measure may have a discriminatory effect within the meaning of Article 2.1
of the ICCPR and Article 2.2 of the ICESCR, for the purpose of Australia complying with
Article 6, in the light of Article 4, such a measure is legitimate, proportionate and reasonable.
The Bill also engages Articles 14 (self-incrimination) and 17 (privacy) of the ICCPR,
however these measures are legitimate, proportionate and reasonable in achieving the
objective of providing the necessary powers and functions to investigate compliance with the
Temporary Sponsored Work Visa Program.
The Hon. Brendan O'Connor MP, Minister for Immigration and Citizenship