Migration Amendment (Skilling Australians Fund) Bill 2017 - Commentary on Ministerial Responses [2017] AUSStaCSBSD 416 (6 December 2017)

• Migration Amendment (Skilling Australians Fund) Bill 2017
• Penalty in delegated legislation81

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Migration Amendment (Skilling Australians Fund) Bill 2017

Purpose	This bill seeks to amend the Migration Act 1958 to: • provide for the collection of a nomination training contribution charge from employers nominating overseas skilled workers; • allow nominations to be accepted from persons that have applied to be an approved sponsor, or have entered into negotiations for a work agreement; and • allow the Minister to determine, by legislative instrument, the manner in which labour market testing in relation to a nominated position must be undertaken, and the kinds of evidence that must accompany a nomination
Portfolio	Immigration and Border Protection
Introduced	House of Representatives on 18 October 2017
Bill status	Before House of Representatives
Scrutiny principle	Standing Order 24(1)(a)(iv)

2.203 The committee dealt with this bill in Scrutiny Digest No. 13 of 2017. The Minister responded to the committee's comments in a letter dated 4 December 2017. Set out below are extracts from the committee's initial scrutiny of the bill and the Minister's response followed by the committee's comments on the response. A copy of the letter is available on the committee's website.^[80]

Penalty in delegated legislation^[81]

Initial scrutiny – extract

2.204 Proposed section 140ZN sets out what may be prescribed in the regulations. Paragraph (e) provides that the regulations may make provision for, or in relation to, the payment of a penalty in relation to the underpayment of a nomination training contribution charge.

2.205 The bill sets no upper limit on the level of the penalty. The explanatory memorandum states that the penalty may be a prescribed fee that reflects the cost to the Department of Immigration and Border Protection of administering multiple payments; or may take the form of an interest payment to reflect the loss of interest revenue resulting from the underpayment.^[82] However, there is nothing in the legislation that would limit the amount of the penalty prescribed in this way.

2.206 The committee seeks the Minister's advice as to why the bill proposes delegating to the regulations the power to impose a penalty in relation to the underpayment of a nomination training contribution charge without setting an upper limit in relation to the penalty.

Minister's response

2.207 The Minister advised:

I note the Committee's concern that the Bill does not set an upper limit on the level of the penalty that may be prescribed in the regulations. I will consider moving an amendment to the Bill to address this concern.

Committee comment

2.208 The committee thanks the Minister for this response. The committee notes the Minister's advice that he will consider moving an amendment to the bill to set an upper limit on the level of the penalty that may be prescribed in the regulations.

2.209 The committee reiterates its scrutiny concerns regarding the proposed section as it is currently drafted. The committee will examine the terms of any amendments that may be made to the proposed section.

2.210 In light of the Minister's advice that he will consider moving an amendment to set an upper limit on the level of the penalty that may be set in the regulations, the committee makes no further comment on this matter at this time.

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[80] See correspondence relating to Scrutiny Digest No. 15 of 2017 available at: www.aph.gov.au/senate_scrutiny_digest

[81] Schedule 1, item 12, proposed paragraph 140ZN(e). The committee draws Senators’ attention to this provision pursuant to principle 1(a)(iv) of the committee’s terms of reference.

[82] Explanatory memorandum p. 7.