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Schedule 1—Nomination training contribution charges

Schedule 1 Nomination training contribution charges

Part 1 Main amendments

Migration Act 1958

1  Subsection 5(1)

Insert:

Finance Minister means the Minister who administers the Public Governance, Performance and Accountability Act 2013 .

nomination tra ining contribution charge means nomination training contribution charge imposed by section 7 of the Migration (Skilling Australians Fund) Charges Act 2017 .

2  Paragraph 140GB(2)(a)

Omit “sponsor”, substitute “person”.

3  Subsection 140GB(2) (note)

Omit “Note”, substitute “Note 1”.

4  At the end of subsection 140GB(2)

Add:

Note 2:       See section 140ZM for when a person is liable to pay nomination training contribution charge.

5  Paragraphs 140GBA(1)(b) and (c)

Omit “sponsor”, substitute “person”.

6  Subsection 140GBB(1)

Omit “the sponsor”, substitute “the person”.

7  Subsection 140GBB(2)

Omit “sponsor”, substitute “person”.

8  Subparagraphs 140GBB(4)(a)(i) and (ii)

Omit “sponsor”, substitute “person”.

9  Paragraph 140GBB(4)(b)

Omit “sponsor”, substitute “person”.

10  Paragraph 140GBB(4)(b)

Omit “sponsors”, substitute “persons”.

11  At the end of Division 3A of Part 2

Add:

140ZL   Division binds the Crown

             (1)  This Division binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.

             (2)  However, this Division does not make the Crown liable to be prosecuted for an offence.

             (3)  To avoid doubt, subsection (2) does not prevent the Crown being liable to pay a pecuniary penalty under this Division.

12  After Division 3A of Part 2

Insert:

Division 3B Nominations

140ZM   Nomination training contribution charge

             (1)  A person is liable to pay nomination training contribution charge to the Commonwealth in relation to a nomination by the person under section 140GB if the nomination is a nomination of a kind prescribed by the regulations.

             (2)  A person applying under the regulations, or in accordance with the terms of a work agreement, for approval of a nomination of a position in relation to the holder of, or an applicant or proposed applicant for, a visa, is liable to pay nomination training contribution charge to the Commonwealth in relation to the nomination if:

                     (a)  the visa is of a kind (however described) prescribed by the regulations; and

                     (b)  the nomination is a nomination of a kind prescribed by the regulations.

140ZN   Regulations about nomination training contribution charge

                   The regulations may make provision for, or in relation to, all or any of the following matters:

                     (a)  when nomination training contribution charge is due and payable;

                     (b)  the method of paying nomination training contribution charge (including the currency in which the charge must be paid);

                     (c)  the remission or refund of nomination training contribution charge;

                     (d)  the overpayment or underpayment of nomination training contribution charge;

                     (e)  the payment of a penalty in relation to the underpayment of nomination training contribution charge;

                      (f)  the giving of information and keeping of records relating to a person’s liability to pay nomination training contribution charge.

140ZO   Recovery of nomination training contribution charge and late payment penalty

                   If an amount of:

                     (a)  nomination training contribution charge; or

                     (b)  a penalty in relation to the underpayment of such a charge;

is due and payable to the Commonwealth, the amount is a debt due to the Commonwealth and may be recovered by action in a court of competent jurisdiction.

140ZP   Notional application of nomination training contribution charge in relation to nominations by the Commonwealth

             (1)  The Commonwealth is not liable to pay nomination training contribution charge that is payable under section 140ZM. However, it is the Parliament’s intention that the Commonwealth should be notionally liable to pay such charge.

             (2)  The Finance Minister may give such written directions as are necessary or convenient for carrying out or giving effect to subsection (1) and, in particular, may give directions in relation to the transfer of money within an account, or between accounts, operated by the Commonwealth.

             (3)  Directions under subsection (2) have effect, and must be complied with, despite any other Commonwealth law.

             (4)  A direction under subsection (2) is not a legislative instrument.

             (5)  In subsections (1) and (2), Commonwealth includes a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013 ) that cannot be made liable to taxation by a Commonwealth law.

140ZQ   Division binds the Crown

             (1)  This Division binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.

             (2)  However, this Division does not make the Crown liable to be prosecuted for an offence.

             (3)  To avoid doubt, subsection (2) does not prevent the Crown being liable to pay a pecuniary penalty under this Division.

Part 2 Other amendments

Migration Act 1958

13  After paragraph 140GBA(3)(a)

Insert:

                    (aa)  the labour market testing in relation to the nominated position was undertaken in the manner determined under subsection (5); and

14  Subparagraph 140GBA(3)(b)(i)

Omit “(see subsections (5) and (6))”, substitute “of a kind determined under subsection (6A)”.

15  Subsections 140GBA(5), (6) and (6A)

Repeal the subsections, substitute:

             (5)  For the purposes of paragraph (3)(aa), the Minister may, by legislative instrument, determine the manner in which labour market testing in relation to a nominated position must be undertaken.

             (6)  Without limiting subsection (5), the Minister may determine the following:

                     (a)  the language to be used for any advertising (paid or unpaid) of the position, and any similar positions, commissioned or authorised by the approved sponsor;

                     (b)  the method of any such advertising;

                     (c)  the period during which any such advertising must occur;

                     (d)  the duration of any such advertising.

          (6A)  For the purposes of subparagraph (3)(b)(i), the Minister may, by legislative instrument, determine kinds of evidence that must accompany a nomination.

          (6B)  Without limiting subsection (6A), the Minister may determine that a copy of any advertising mentioned in subsection (6) must accompany a nomination.

          (6C)  Without limiting subsection (5) or (6A), the Minister may prescribe different manners or evidence for different nominated positions or classes of nominated positions.

Part 3 Application and transitional provisions

16  Application provision

(1)       Subdivision B of Division 3A of Part 2 of the Migration Act 1958 , as amended by Part 1 of this Schedule, applies in relation to:

                     (a)  nominations made on or after the commencement of this item; and

                     (b)  nominations made before the commencement of this item but not decided at the commencement of this item.

(2)       Subdivision B of Division 3A of Part 2 of the Migration Act 1958 , as amended by Part 2 of this Schedule, applies in relation to nominations made on or after the commencement of this item.

(3)       Division 3B of Part 2 of the Migration Act 1958 , as inserted by Part 1 of this Schedule, applies in relation to nominations made on or after the commencement of this item.

17  Transitional provision

An exemption made under subsection 140GBB(2) of the Migration Act 1958 that was in force immediately before the commencement of this item continues in force (and may be dealt with) as if it had been made under that subsection as amended by this Act.