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2016 - 2017 - 2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MIGRATION AMENDMENT (SKILLING AUSTRALIANS FUND) BILL 2017
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the Minister for Home Affairs and Minister for Immigration
and Border Protection, the Hon. Peter Dutton MP)
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Migration Amendment (Skilling Australians Fund) Bill 2017
OUTLINE
The Migration Amendment (Skilling Australians Fund) Bill 2017 (the Bill) amends the
Migration Act 1958 (the Migration Act) to:
require employers who nominate a worker under the temporary and permanent skilled
migration programmes to pay the nomination training contribution charge imposed by
the Migration (Skilling Australians Fund) Charges Act 2017 (the Charges Act). The
nomination training contribution charge will offset expenditure from the Skilling
Australians Fund, a training fund administered by the Department of Education and
Training, to support skills development of Australians;
allow nominations to be accepted from persons that have applied to be an approved
sponsor, or have entered into negotiations for a work agreement; and
allow the Minister to determine, by legislative instrument, the manner in which labour
market testing in relation to a nominated position must be undertaken, and the kinds
of evidence that must accompany a nomination.
The amendments to the Bill provide that the penalty prescribed for the purposes of new
paragraph 140ZN(1)(e) of the Migration Act must be a civil penalty not exceeding 60 penalty
units.
FINANCIAL IMPACT STATEMENT
The financial impact of these amendments is nil.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
A statement of compatibility with human rights has been prepared for these amendments in
accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 and is at
Attachment A.
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AMENDMENTS TO THE MIGRATION AMENDMENT (SKILLING AUSTRALIANS
FUND) BILL 2017
NOTES ON AMENDMENTS
Amendment 1 Schedule 1, item 12, page 6 (line 8)
1. This amendment amends new section 140ZN, as inserted by the Bill, to be new
subsection 140ZN(1). This is consequential to amendment 2, which inserts new
subsection 140ZN(2).
Amendment 2 Schedule 1, item 12, page 6 (after line 22)
2. This amendment inserts new subsection 140ZN(2) to set an upper limit on the level of
penalty that may be prescribed for the purpose of new paragraph 140ZN(1)(e).
3. New paragraph 140ZN(1)(e) allows the Migration Regulations 1994 (the Regulations)
to make provision for, or in relation to the payment of a penalty in relation to the
underpayment of a nomination training contribution charge. New subsection
140ZN(2) provides that the penalty for the purpose of paragraph 140ZN(1)(e) must be
a civil penalty, and must not exceed 60 penalty units. This amount is consistent with
the existing civil penalty in section 140Q of the Migration Act, which imposes a civil
penalty of 60 penalty units if a person fails to satisfy a sponsorship obligation
prescribed by the Regulations or specified in a work agreement.
4. It is anticipated that only sponsors who have an annual turnover of $10 million or
higher will be affected by any penalty prescribed for the purpose of new paragraph
140ZN(1)(e). This is because the intention is that the nomination training
contribution charge will have two tiers - an amount for sponsors who self-identify as a
small business (annual turnover of less than $10 million per annum) and a second
(higher) amount for sponsors with an annual turnover of $10 million per annum or
higher. As payment of the nomination training contribution charge is required in full
at the time the sponsor lodges an application for nomination of an overseas skilled
worker, sponsors with an annual turnover of less than $10 million per annum could not
underpay the nomination training contribution charge. However, sponsors who have
an annual turnover of $10 million or higher per annum may claim to be a small
business, and incorrectly pay the lower amount of the nomination training contribution
charge, when in fact they are not a small business.
5. Currently, section 4AA of the Crimes Act 1914 (Cth) defines a penalty unit as the
amount of $210. At this rate, the maximum penalty of 60 penalty units amounts to
$12,600. For sponsors with an annual turnover of $10 million, this would constitute
approximately 0.1 per cent of their annual turnover.
6. It is not the intention that any penalty prescribed under new paragraph 140ZN(1)(e)
would be the only means of dealing with the underpayment of a nomination training
contribution charge. New section 140ZO, as inserted by the Bill, makes it clear that if
an amount of nomination training contribution charge is due and payable to the
Commonwealth, the amount is a debt due to the Commonwealth and may be recovered
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by action in a court of competent jurisdiction. Additionally, new paragraph
140ZN(1)(d), as inserted by the Bill, allows the Regulations to make provision for, or
in relation to the overpayment or underpayment of a nomination training contribution
charge.
7. In addition to new section 140ZO and new paragraph 140ZN(1)(d), action may be
taken under the existing sponsorship framework set out in Division 3A of Part 2 of the
Migration Act in relation to approved sponsors who nominate an applicant or proposed
applicant for a temporary visa prescribed for the purpose of current section 140A. For
example, regulation 2.90 of the Regulations prescribes the provision of false or
misleading information to the Department of Home Affairs as a circumstance in which
the Minister may take one or more of the actions mentioned in section 140M of the
Migration Act for the purpose of subparagraph 140L(1)(a)(ii). If the Minister were
satisfied that a sponsor had provided false or misleading information in relation to their
annual turnover, with the consequence that they had underpaid the nomination
training contribution charge, the Minister would be empowered to cancel the
sponsor's approval as a sponsor or bar the sponsor from sponsoring more people or
making future applications for approval as a sponsor under current subsection 140M(1)
of the Migration Act.
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Attachment A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Amendments to the Migration Amendment (Skilling Australians Fund) Bill 2017
This Bill amendment 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 Bill amendment
The purpose of the Bill is to provide a framework for the collection of the nomination
training contribution charge from employers accessing workers under the temporary and
permanent employer sponsored migration programs.
Under section 140ZN(1)(e) the regulations may make provision for the payment of a penalty
in relation to the underpayment of the nomination training contribution charge. These
amendments insert new subsection 140ZN(2) of the Migration Act, which provides that the
penalty for the purpose of paragraph 140ZN(1)(e) of the Migration Act must be a civil
penalty and must not exceed 60 penalty units. The civil penalty may be an amount lesser
than 60 penalty units and will depend on the severity and nature of the underpayment. This
amount is consistent with the existing civil penalty in section 140Q of the Migration Act,
which imposes a civil penalty of 60 penalty units if a person fails to satisfy a sponsorship
obligation prescribed by the regulations or specified in a work agreement.
It is anticipated that only sponsors who have an annual turnover of $10 million or higher will
be affected by any penalty prescribed for the purpose of new paragraph 140ZN(1)(e). This is
because the intention is that the nomination training contribution charge will have two tiers -
an amount for sponsors who self-identify as a small business (annual turnover of less than
$10 million per annum) and a second (higher) amount for sponsors with an annual turnover
of $10 million per annum or higher. As payment of the nomination training contribution
charge is required in full at the time the sponsor lodges an application for nomination of an
overseas skilled worker, sponsors with an annual turnover of less than $10 million per annum
could not underpay the nomination training contribution charge. However sponsors who
have an annual turnover of $10 million or higher per annum may claim to be a small
business, and pay the lower amount of the nomination training contribution charge, when in
fact they are not a small business.
Currently, section 4AA of the Crimes Act 1914 (Cth) defines a penalty unit as the amount of
$210. At this rate, the maximum penalty of 60 penalty units amounts to $12,600. For
sponsors with an annual turnover of $10 million, this would constitute approximately 0.1 per
cent of their annual turnover.
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Human rights implications
Together with the Migration (Skilling Australians Fund) Charges Bill 2017, this Bill
contributes to the provision of training opportunities for Australian citizens and permanent
residents by establishing the framework for the nomination training contribution charge, to be
paid by employers accessing workers under the temporary or permanent employer sponsored
migration programs.
The nomination training contribution charge will fund initiatives which improve training
opportunities and outcomes for Australian citizens and permanent residents. Such initiatives
engage Articles 6.1 and 6.2 of the International Covenant on Economic, Social and Cultural
Rights (ICESCR). Article 6.1 of ICESCR recognizes:
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.
Article 6.2 of ICESCR states that:
The steps to be taken by a State Party of the present Covenant to achieve the full
realization of [the right to work] shall include technical and vocational guidance and
training programmes, policies and techniques to achieve steady economic, social and
cultural development and full and productive employment under conditions
safeguarding fundamental political and economic freedom to the individual.
A civil penalty for the underpayment of the nomination training contribution charge, as
described by 140ZN, demonstrates to employers utilising skilled migration programs that
there are implications for not complying with the requirements to pay the charge, beyond
those that are imposed by the sponsor obligation framework. This is intended to ensure
compliance with the requirement to pay the nomination training contribution charge, and
results in increased reliability of revenue that supports the Skilling Australians Fund and the
training of Australian citizens and permanent residents.
The amendment to the Bill introduces a reasonable limit to the civil penalty (in the context of
sponsors with an annual turnover of $10 million) that may be imposed on an employer that
underpays the nomination training contribution charge. The amount of this penalty also
aligns to the existing penalties for failing to meet sponsor obligations under section 140Q of
the Migration Act.
This legislative framework for the nomination training contribution charge supports the right
to work under Article 6.1 in relation to Australian citizens and permanent residents. Funding
a national training partnership through the sponsorship and nomination framework is an
effective mechanism to promote training across a broad range of industries and occupations
and therefore supporting Australian citizens and permanent residents to be trained and
qualified for skilled work. This supports their right to work. The measure positively engages
Articles 6.1 and 6.2 of the ICESCR as it is a mechanism for Australia to comply with these
rights.
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Conclusion
The Bill is compatible with human rights as the measures support the right to work of
Australian citizens and permanent residents under the right to work in Article 6 of the
ICESCR.
The Hon. Peter Dutton MP, Minister for Home Affairs and Minister for Immigration
and Border Protection
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