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Migration Amendment (Temporary Sponsored Visas) Bill 2013

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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 O’Connor MP)



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 Government’s 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 Australia’s 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).

 

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-General’s 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 Australia’s human rights obligations.  A copy of the Statement of Compatibility with Human Rights is at Attachment A .

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.

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.

.

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.

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 sponsor’s 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 Minister’s 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 sponsor’s 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:

·          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 Australia’s 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 Australia’s 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

·          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 sponsor’s 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 sponsor’s 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);

·          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 sponsor’s 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:

·          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;

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).

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 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.

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 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).



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):

·           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.



 

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 Department’s requirements to provide information to the Department;

·          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 Department’s 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;

·          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).

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.



 

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 person’s 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.

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.

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 Minister’s 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.

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 Department’s 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 Minister’s 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.

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.

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;

·          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;

·          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.

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).

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.



 

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 Department’s 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 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.



 

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.

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) 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.

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 inspector’s 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, 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.

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 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.

 

 

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

·          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

·          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 Australia’s 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;

·          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 Government’s 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).

 

Before any assessment of these obligations takes place, it is instructive to see whether the UNCESCR’s 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.

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 Department’s 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 Minister’s 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.

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.

 

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 140X C(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