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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
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the Minister for Immigration and Citizenship,
the Hon. Brendan OConnor)
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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 work 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.
The proposed Government amendments to the Bill:
require the Minister to take all reasonable steps to ensure that, at all times, there is in
existence a council that is known as the Ministerial Advisory Council on Skilled Migration,
established under the executive power of the Commonwealth, which includes
representatives of unions, industry and State and Territory governments and other members
(if any) nominated by the Minister and meets at least quarterly;
provides that without limiting its functions, the Ministerial Advisory Council on Skilled
Migration is to provide advice to the Minister in relation to the temporary sponsored work
visa program;
clarifies the evidence required in relation to labour market testing which is to accompany the
nomination;
if one or more Australian citizens or Australian permanent residents were, in the previous 4
months, made redundant or retrenched from positions in the nominated occupation in a
business, or an associated entity, of the approved sponsor, require the approved sponsor to
provide information about those redundancies or retrenchments with the nomination;
ensure that if there have been redundancies or retrenchments, the labour market testing must
be undertaken after those redundancies and retrenchments;
amend the labour market testing condition so that it is satisfied if the Minister is satisfied
that a suitably qualified and experienced Australian citizen, Australian permanent resident
and eligible temporary visa holder is not readily available to fill the nominated position;
clarify that if the approved sponsor elects to provide evidence and information other than
evidence of advertising and fees, or payment of fees, to support their claim to have tested the
labour market, the Minister may take that evidence and information into account. But if the
approved sponsor elects not to provide such other evidence or information, the Minister is
not to treat the nomination less favourably merely because of that fact;
restrict the skill and occupational exemptions in relation to labour market testing; and
insert the definitions of ,,associated entity, ,,eligible temporary visa holder, ,,protected
experience and ,,protected qualification for the purposes of the labour market testing
condition.
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These amendments will clarify and strengthen the labour market testing measure in the Bill and
ensures that redundancies or retrenchments cannot be used to circumvent the policy intent of the
temporary sponsored work visa program.
FINANCIAL IMPACT STATEMENT
The financial impact of the amendments is medium.
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MIGRATION AMENDMENT (TEMPORARY SPONSORED VISAS) BILL 2013
NOTES ON AMENDMENTS
Amendment (1) - Schedule 1, heading, page 4 (line 1)
1. This amendment omits the word "purpose" from the heading of Schedule 1 of the Bill and
inserts the word "preliminary".
2. This amendment is a consequential amendment as a result of Amendment (2) below.
Amendment (2) - Schedule 1, item 1, page 4 (after line 32)
3. This amendment inserts new section 140AB after section 140AA in Schedule 1 of the Bill.
4. New subsection 140AB(1) provides that the Minister must take all reasonable steps to ensure
that, at all times, there is in existence a council that:
is known as the Ministerial Advisory Council on Skilled Migration; and
is established under the executive power of the Commonwealth; and
includes representatives of unions, industry and State and Territory governments and
other members (if any) nominated by the Minister; and
meets at least quarterly.
5. New subsection 140AB(2) provides that without limiting its functions apart from section
140AB, the Ministerial Advisory Council on Skilled Migration is to provide advice to the
Minister in relation to the temporary sponsored work visa program.
6. The purpose of this amendment is to recognise the role of the Ministerial Advisory Council
on Skilled Migration in providing advice to the Minister for Immigration and Citizenship in
relation to the temporary sponsored work visa program.
7. The Ministerial Advisory Council on Skilled Migration was established by executive action
in 2012 and meets at least quarterly. It provides advice to the Minister on the skilled
migration visa program. Its membership in 2013 includes representatives of unions, industry
and State and Territory governments. It is desirable to recognise the Ministerial Advisory
Council on Skilled Migration in the Migration Act and to acknowledge the role of the
Ministerial Advisory Council on Skilled Migration in providing advice to the Minister on the
temporary sponsored work visa program, which includes the subclass 457 visa program.
8. Paragraph 140AB(1)(b) provides that the council is established under the executive power of
the Commonwealth. This ensures that the Remuneration Tribunal Act 1973 does not apply to
the Ministerial Advisory Council on Skilled Migration.
9. Paragraph 140AB(1)(c) provides that the council includes representatives of unions, industry
and State and Territory governments and other members (if any) nominated by the Minister.
The inclusion of representatives of unions, industry and State and Territory governments as
members of the Ministerial Advisory Council on Skilled Migration recognises the important
role that these three groups have in providing advice to the Minister in relation to the
temporary sponsored work visa program.
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Amendment (3) - Schedule 2, item 2, page 6 (lines 15 to 18)
10. This amendment omits paragraph 140GBA(3)(b) and (c) of Part 1 of Schedule 2 of the Bill
and substitutes it with a new paragraph 140GBA(3)(b).
11. New paragraph 140GBA(3)(b) provides that the nomination is accompanied by:
evidence in relation to that labour market testing (see subsection 140GBA(5) and
(6)); and
if one or more Australian citizens or Australian permanent residents were, in the
previous 4 months, made redundant or retrenched from positions in the nominated
occupation in a business, or an associated entity, of the approved sponsor -
information about those redundancies or retrenchments.
12. The purpose of this amendment is to strengthen the evidentiary requirements for an approved
sponsor to satisfy the labour market testing condition.
13. Further, this amendment ensures that if one or more Australian citizens or Australian
permanent residents were, in the previous 4 months, made redundant or retrenched from
positions in the nominated occupation in the business, or an associated entity, of the approved
sponsor, the approved sponsor must provide information about those redundancies or
retrenchments with the nomination.
Amendment (4) - Schedule 2, item 2, page 6 (line 19)
14. This amendment inserts the words "and information (if any)," after the word "evidence" in
paragraph 140GBA(3)(d) of Part 1 of Schedule 2 of the Bill.
15. This is a consequential amendment as a result of Amendment (3) above.
Amendment (5) - Schedule 2, item 2, page 6 (lines 19 to 22)
16. This amendment omits the words "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" in new paragraph 140GBA(3)(d) and substitutes with the words:
"the Minister is satisfied that:
(i) a suitably qualified and experienced Australian citizen or Australian
permanent resident is not readily available to fill the nominate position; and
(ii) a suitably qualified and experienced eligible temporary visa holder is not
readily available to fill the nominated position."
17. This amendment will amend paragraph 140GBA(3)(d) of Part 1 of Schedule 2 of the Bill so
that the labour market testing condition requirement is satisfied if the Minister is satisfied that
a suitably qualified and experienced Australian citizen, Australian permanent resident and
eligible temporary visa holder is not readily available to fill the nominated position.
Amendment (6) - Schedule 2, item 2, page 6 (line 26) to page 7 (line 18)
18. This amendment omits subsection 140GBA(5) and subsection 140GBA(6) and substitutes
new subsections 140GBA(4A), (5) and (6).
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19. New subsection 140GBA(4A) provides that despite paragraph 140GBA(3)(a) and subsection
140GBA(4), if there have been redundancies or retrenchments as mentioned in subparagraph
140GBA(3)(b)(ii), the labour market testing must be undertaken after those redundancies and
retrenchments.
20. This amendment creates a separate requirement regarding the period in which labour market
testing must be undertaken in circumstances where the approved sponsors business or
associated entity has made redundant or retrenched Australian citizens or Australian
permanent residents. In such circumstances, an approved sponsor must undertake labour
market testing after those redundancies and retrenchments.
21. New subsection 140GBA(5) provides that for the purposes of subparagraph 140GBA(3)(b)(i),
the evidence in relation to labour market testing:
must include the 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
140GBA(6)); and
may also include other evidence, such as:
o copies of, or references to, any research released in the previous 4 months
relating to labour market trends generally and in relation to the nominated
occupation; or
o expressions of support from Commonwealth, State and Territory government
authorities with responsibility for employment matters; or
o any other type of evidence determined by the Minister by legislative instrument,
for subparagraph 140GBA(5)(b)(iii).
22. This amendment makes it mandatory for an approved sponsor to provide information about
their attempts to recruit suitably qualified and experienced Australian citizens or Australian
permanent residents to the position and any other similar positions, rather than being one of
the options available to an approved sponsor.
23. Additionally, this amendment makes it discretionary for an approved sponsor to provide one
or more of the following types of evidence listed in paragraph 140GBA(5)(b).
24. These amendments strengthen the evidentiary requirements for an approved sponsor to satisfy
the labour market testing condition.
25. This amendment also provides that any research in relation to labour market trends generally
and in relation to the nominated occupation is research which has been undertaken in the
previous 4 months.
26. The option that the approved sponsor provides research released in the previous 4 months in
relation to labour market testing generally and in relation to the nominated occupation
represents a change from the Bill which allows for the provision of research released in the
previous 6 months. The reason for this change is that research conducted in the last 6 months
could be out of date and not reflect current labour market trends.
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27. New subsection 140GBA(6) provides that for the purposes of paragraph 140GBA(5)(a), the
information mentioned:
must include details of:
o any advertising (paid or unpaid) of the position, and any similar positions,
commissioned or authorised by the approved sponsor; and
o fees and other expenses paid (or payable) for that advertising; and
may also include other information, such as:
o information about the approved sponsors participation in relevant job and career
expositions; or
o details of any other fees and expenses paid (or payable) for any recruitment
attempts mentioned in paragraph 140GBA(5)(a) (including participation
mentioned in subparagraph 140GBA(6)(b)(i)); or
o details of the results of such recruitment attempts, including details of any
positions filled as a result.
28. This amendment makes it mandatory for an approved sponsor to provide details of any
advertising (paid or unpaid) of the position, and any similar positions, commissioned or
authorised by the approved sponsor and fees and other expenses paid (or payable) for that
advertising when providing information about their attempts to recruit suitably qualified and
experienced Australian citizens or Australian permanent residents to the position and any
other similar positions.
29. Additionally, this amendment makes it discretionary for an approved sponsor to provide other
information such as participation in relevant job and career expositions, details of any other
fees and expenses paid (or payable) for any recruitment attempts or details of the results of
such recruitment attempts, including details of any position filled as a result.
30. The purpose of this amendment is to ensure that approved sponsors advertise positions or any
similar positions, as part of their efforts to test the labour market.
Amendment (7) - Schedule 2, item 2, page 7 (before line 19)
31. This amendment inserts new subsection 140GBA(6A) before the heading to subsection
140GBA(7) of Part 1 of Schedule 2 of the Bill.
32. New subsection 140GBA(6A) provides that if the approved sponsor elects to provide other
evidence and information as mentioned in paragraphs 140GBA(5)(b) and (6)(b), the Minister
may take that evidence and information into account. But if the approved sponsor elects not
to provide such other evidence or information, the Minister is not to treat the nomination less
favourably merely because of that fact.
33. Paragraphs 140GBA(5)(b) and (6)(b) set out the discretionary evidence and information that
may accompany the nomination.
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34. This amendment is for the purpose of clarifying that the Minister is not to treat the
nomination less favourably merely because of the fact that an approved sponsor does not
provide evidence and information as mentioned in paragraphs 140GBA(5)(b) and (6)(b).
Amendment (8) - Schedule 2, item 2, page 7 (after line 20)
35. This amendment inserts the definition of associated entity before the definition of Australian
permanent resident in subsection 140GBA(7).
36. Associated entity has the same meaning as in Part 2A of the regulations. Regulation 2.57 of
the Migration Regulations 1994 provides that in Part 2A associated entity has the same
meaning as in section 50AAA of the Corporations Act 2001.
Amendment (9) - Schedule 2, item 2, page 7 (after line 22)
37. This amendment inserts the definition of eligible temporary visa holder after the definition of
Australian permanent resident in subsection140GBA(7).
38. The definition provides that a person is an eligible temporary visa holder, in relation to a
nomination by an approved sponsor if, at the time when the nomination is made:
the person is the holder of a temporary visa referred to in the regulations as a
Subclass 417 (Working Holiday) visa or a Subclass 462 (Work and Holiday) visa;
and
the person is employed in the agricultural sector by the approved sponsor (or an
associated entity of the approved sponsor); and
the temporary visa does not prohibit the person from performing that employment.
39. This amendment is for the purpose of defining who is an eligible temporary visa holder for
the purposes of a nomination by an approved sponsor.
Amendment (10) - Schedule 2, item 2, page 9 (line 3)
Amendment (11) - Schedule 2, item 2, page 9 (line 4)
40. Amendment (10) adds ", other than a protected qualification" after "qualification" in
subparagraph 140GBC(2)(a)(i) in item 2 of Part 1 of Schedule 2 of the Bill.
41. Amendment (11) adds ", other than protected experience" after "experience" in subparagraph
140GBC(2)(a)(ii) in item 2 of Part 1 of Schedule 2 of the Bill.
42. Currently, subsection 140GBC(2) in the Bill 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;
o 5 years or more of relevant experience; and
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the nominated occupation is specified for the purposes of subsection 140GBC(2) under
subsection 140GBC(4).
43. This amendment restricts the skill and occupational exemption in subsection 140GBC(2) in
relation to labour market testing. The effect of this amendment is that nominations made by
approved sponsors requiring either or both experience or a qualification (however described)
in engineering (including shipping engineering) or nursing cannot be exempt from labour
market testing under section 140GBC.
44. The definitions of protected qualification and protected experience are inserted by
Amendment (15) below.
Amendment (12) - Schedule 2, item 2, page 9 (line 12)
Amendment (13) - Schedule 2, item 2, page 9 (line 13)
45. Amendment (12) adds ", other than a protected qualification" after "AQF" in subparagraph
140GBC(3)(a)(i) in item 2 of Part 1 of Schedule 2 of the Bill.
46. Amendment (13) adds ", other than protected experience" after "experience" in subparagraph
140GBC(3)(a)(ii) in item 2 of Part 1 of Schedule 2 of the Bill.
47. Currently, subsection 140GBC(3) in the Bill 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).
48. The amendment restricts the skill and occupational exemption in subsection 140GBC(3) in
relation to labour market testing. The effect of this amendment is that nominations made by
approved sponsors requiring either or both experience or a qualification (however described)
in engineering (including shipping engineering) or nursing cannot be exempt from labour
market testing under section 140GBC.
49. The definitions of protected qualification and protected experience are inserted by
Amendment (15) below.
Amendment (14) - Schedule 2, item 2, page 9 (line 25)
50. This amendment substitutes the heading to subsection 140GBC(6) in item 2 of Part 1 of
Schedule 2 of the Bill.
51. This amendment is a consequential amendment as a result of Amendment (15) below, which
inserts the definitions of protected experience and protected qualification in section
140GBC.
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Amendment (15) - Schedule 2, item 2, page 9 (after line 28)
52. This amendment insert the definitions of protected experience and protected qualification
subsection 140GBC(6) in item 2 of Part 1 of Schedule 2 of the Bill.
53. Protected experience means experience in the field of engineering (including shipping
engineering) or nursing.
54. Protected qualification means a qualification (however described) in engineering (including
shipping engineering) or nursing.
Amendment (16) - Schedule 2, item 6, page 11 (line 19)
55. This amendment inserts the words "(subject to subsection 140GBA(4A))" after the word
"applies" in subitem 6(2) of Part 3 of Schedule 2 of the Bill.
56. This is a consequential amendment as a result of Amendment (6) above.
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