EXPLANATORY STATEMENT

 

Select Legislative Instrument 2006 No. 133

 

Issued by the Minister for Immigration

and Multicultural Affairs

 

 

Minute No. 10 of 2006 - Minister for Immigration and Multicultural Affairs

 

Subject -          Migration Act 1958

 

                        Migration Amendment Regulations 2006 (No. 3)

 

Subsection 504(1) of the Migration Act 1958 (the Act) provides, in part, that the     Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

In addition, subsection 31(3) of the Act provides that the regulations may prescribe criteria for a visa or visas of a specified class.

The purpose of the Regulations is to amend the Migration Regulations 1994 to:

 

o       require that a nomination of a position under the certified regional employment arrangements for grant of a Subclass 457 (Business (Long Stay)) visa must indicate that the visa holder employed in the position will be paid in accordance with a minimum salary level (MSL) specified in a Gazette Notice; and

o       require that the Minister must be satisfied that an applicant for a Subclass 457 visa will be paid at the MSL that applies at the time the decision on the visa application is decided, to ensure that payment will be at the level current when the visa holder arrives in Australia.

 

Details of the Regulations are set out in the Attachment.

 

The Act specifies no conditions that need to be satisfied before the power to make the Regulations may be exercised.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations commence on 1 July 2006.

 

The Minute recommends that Regulations be made in the form proposed.

 

The Office of Regulation Review in the Productivity Commission has been consulted and advises that the Regulations are not likely to have a direct effect, or substantial indirect effect, on business and are not likely to restrict competition.

No other consultations were conducted in relation to these Regulations as the amendments were considered not to have relevant implications for any external agencies or other bodies.

 

ATTACHMENT

 

Details of the proposed  Migration Amendment Regulations 2006 (No. 3)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Migration Amendment Regulations 2006 (No. 3)

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence on 1 July 2006.

 

Regulation 3 – Amendment of Migration Regulations 1994

 

This regulation provides that the Migration Regulations 1994 (the Principal Regulations) are amended as set out in Schedule 1 to the Regulations.

 

Regulation 4 – Transitional

Subregulation 4(1) provides that the amendment made by item [1] of Schedule 1 applies in relation to the nomination of an activity made on or after 1 July 2006.

Subregulation 4(2) provides that the amendments made by items [2] and [3] of Schedule 1 apply in relation to an application for a visa made but not finally determined (within the meaning of subsection 5(9) of Migration Act 1958) before 1 July 2006, or made on or after 1 July 2006.

Schedule 1 – Amendments  

Item [1] – Paragraph 1.20GA(1)(c)

This item substitutes paragraph 1.20GA(1)(c) in Part 1 of Division 1.4A of the Principal Regulations with a new paragraph 1.20GA(1)(c).

New paragraph 1.20GA(1)(c) requires that the level of payment stated in a nomination of an employment position, which is to be filled by a person granted a Subclass 457 (Business (Long Stay)) visa on the basis of the nomination under the certified regional employment arrangements, must be not less than the level of remuneration provided for under relevant Australian legislation and awards, and must be at least the minimum salary level that applied at the time the nomination was made.

The effect of this amendment is to add to the existing requirements for approval of a nomination.  The additional requirement is that the level of payment must be at least the minimum salary level that applied at the time the nomination was made.

The term ‘minimum salary level’ (MSL) is defined in regulation 1.20B of the Principal Regulations to mean a level of salary worked out in the way specified by the Minister in a Gazette Notice.  The MSL is set in consultation with the Department of Employment and Workplace Relations.  Broadly, it is based on average salary levels for full time and part time work in the relevant occupations, in conjunction with further consultation with industry if necessary,  The MSL acts as an indicator that the position to be filled is “skilled”.         

Item [2] – Schedule 2, subparagraph 457.223(4)(f)(ii)

This item amends subparagraph 457.223(4)(f)(ii) in Part 457 (Subclass 457 – Business (Long Stay)) of Schedule 2 to the Principal Regulations, by omitting the words ‘that applied at the time the nomination was made’ and substituting the words ‘that applies at the time the decision on the visa application is made’.

The effect of this amendment is that when deciding an application for a Subclass 457 visa on the basis of a nomination of a position of employment under regulation 1.20G, the Minister must be satisfied that the level at which the visa applicant will be paid must be a least the level of the minimum salary level that applies at the time the decision is made, rather than the minimum salary level that applied when the nomination was made.

For an explanation of the term ‘minimum salary level’, see the notes on item [1] of this Schedule, above.  The minimum salary level can change from time to time.  This amendment ensures that before a visa is granted the Minister must be satisfied that the applicant will be paid at the current minimum salary level, rather than a different salary level that may have applied at the time the nomination was made.  It is appropriate to ensure that the applicant will be paid at the level that is set at the time the applicant will be employed in Australia, rather than a level that may have applied up to two years or more in the past.    

Item [3] – Schedule 2, subparagraph 457.223(4)(g)(iii)

This item amends subparagraph 457.223(4)(g)(iii) in Part 457 (Subclass 457 – Business (Long Stay)) of Schedule 2 to the Principal Regulations, by omitting the subparagraph and substituting two new subparagraphs 457.223(g)(iii) and 457.223(g)(iv).

New subparagraph 457.223(g)(iii) provides that at the time of deciding an application for a Subclass 457 visa on the basis of employment in a position nominated under regulation 1.20GA, the Minister must be satisfied that the applicant will be paid at least the minimum salary level that applies when the decision on the visa application is made.  

The effect of this amendment is to add an additional requirement to be satisfied in respect of the level of payment to be made to the visa applicant.  Previously, that level was required to be the level specified in the relevant nomination, and not less than the level provided for under relevant legislation and awards.   New subparagraph 457.233(g)(iii) now also requires that the level must be at least the minimum salary level current at the time the visa application is decided.  This ensures that the visa applicant will be paid at an appropriate level on arrival in Australia.  (For further details concerning the “minimum salary level”, please see the notes on item [1] of this Schedule, above.)

New subparagraph 457.223(4)(g)(iv) re-inserts, without change except for re-numbering, the previous subparagraph 457.223(4)(g)(iii).   This amendment is merely a change in position of the subparagraph consequential upon the insertion of new subparagraph 457.223(4)(g)(iii).