Federal Register of Legislation - Australian Government

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IMMI 12/047 Specifications as made
This specification revokes Migration Regulations 1994 - Specification under paragraphs 2.72(10)(cc) and 2.79(1A)(b) and subregulation 2.72(10AB) - Specification of Income Threshold and Annual Earnings - June 2011 and specifies the temporary skilled migration income threshold and annual earnings.
Administered by: Immigration and Citizenship
Made 12 Jun 2012
Registered 22 Jun 2012
Tabled HR 25 Jun 2012
Tabled Senate 25 Jun 2012
Date of repeal 01 Jul 2013
Repealed by Migration Regulations 1994 - Specification of Income Threshold and Annual Earnings - IMMI 13/028

EXPLANATORY STATEMENT

Migration Regulations 1994

 

SPECIFICATION OF INCOME THRESHOLD AND ANNUAL EARNINGS

 

(Paragraphs 2.72(10)(cc) and 2.79(1A)(b) and subregulation 2.72(10AB))

 

1.                  This Instrument is made under paragraph 2.72(10)(cc), subregulation 2.72(10AB) of Division 2.17 of Part 2A and paragraph 2.79(1A)(b) of Division 2.19 of Part 2A of the Migration Regulations 1994 (‘the Regulations’).

 

2.                  Paragraph 2.72(10)(cc) of the Regulations provides that the Minister must be satisfied that the base rate of pay (under the terms and conditions of employment mentioned in paragraph 2.72(10)(c)) that are provided, or would be provided, to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph. 

 

3.                  Subregulation 2.72(10AB) provides that paragraphs 2.72(10)(c) and 2.72(10)(cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation. 

 

4.                  Paragraph 2.79(1A) of the Regulations provides that regulation 2.79, that provides the obligation to ensure equivalent terms and conditions of employment, does not apply to a standard business sponsor of a primary sponsored person if either:

·         the primary sponsored person holds a Subclass 457 (Business (Long Stay)) visa or the last substantive visa held by the primary sponsored person was a Subclass 457 (Business (Long Stay)) visa; and

·         the annual earnings of the primary sponsored person are equal to or greater than the amount specified by the Minister in an instrument in writing for this paragraph.

 

5.                  The purpose of the instrument is to specify that the temporary skilled migration income threshold is AUD 51,400.  The purpose of this item is to provide for the annual indexation of the temporary skilled migration income threshold annually according to the Australian Bureau of Statistics Average Weekly Earnings data. 

 

 

6.                  The purpose of the instrument is also to specify annual earnings of AUD 180,000 for the purposes of subregulation 2.72(10AB) of the Regulations and paragraph 2.79(1A)(b) of the Regulations.  This figure remains at AUD 180,000 as it continues to align with the ordinary taxable income of a taxpayer required to pay the highest rate of tax under Part I of Schedule 7 to the Income Tax Rates Act 1986

 

7.                  The effect of 2.79(1A)(b) is that the primary business sponsor does not have to satisfy the obligation, provided the primary sponsored person holds a Subclass 475 (Business (Long Stay)) visa, or their last substantive visa was a subclass 457 (Business (Long Stay)) visa and their annual earnings are equal to or greater than AUD 180,000.

 

8.                  Consultation was not necessary as, under section 18(1) of the Legislative Instruments Act 2003, the Instrument is of a minor or machinery nature and does not substantially alter existing arrangements.

 

9.                  The Office of Best Practice Regulation has advised that a Regulatory Impact Statement is/is not required (OBPR Ref 12611).

 

10.              Under section 42 of the Legislative Instruments Act 2003 the Instrument is subject to disallowance and therefore a Human Rights Statement of Compatibility has been provided.

 

11.              The Instrument, IMMI 12/047, commences on 1 July 2012 immediately after the commencement of the Migration Amendment Regulation 2012 (No. 2).


Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Specification of Income Threshold and Annual Earnings

 

This Legislative Instrument 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 Temporary Skilled Migration Income Threshold (TSMIT) was implemented as part of the 2009 reforms to the 457 visa program.  If the market salary rate for a position is below the TSMIT, an employer cannot nominate this position to be filled by a 457 visa holder.

The TSMIT was initially set at $45,220.00, based on research conducted by the Department on the minimum salary necessary for visa holders to support themselves in Australia, considering they are generally not eligible for government benefits and support. 

The other key purpose of the TSMIT is to ensure the program is only used for positions requiring skilled and experienced workers, rather than entry-level positions.  It is therefore important that TSMIT keep pace with wage growth across the Australian labour market.

For the period February 2011 to February 2012 (the latest available) Average Weekly Earnings increased by 4.2 per cent.  Indexation would therefore result in a TSMIT of $51,400.00 (rounded down from $51,401.00) from 1 July 2012.  TSMIT is indexed annually. .

Human rights implications

This Legislative Instrument engages Article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

Article 7 provides that:

The States Parties to the present Covenant recognize the right of everyuone to the enjoyment of just and favourable conditions of work which ensure, in particular:

(a) Remuneration which provides all workers, as a minimum, with:

(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

(ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant…

The proposed legislative instrument engages and supports Article 7 of the ICESCR insofar as it facilitates the indexation of the minimum salary for eligible Subclass 457 visa holders to a value commensurate to the market salary rate.    

 

Conclusion

The Legislative Instrument is compatible with human rights because it supports the right of eligible Subclass 457 visa holders to the enjoyment of just and favourable conditions of work pursuant to Article 7 of the International Covenant on Economic, Social and Cultural Rights.

 

The Hon. Chris Bowen, Minister for Immigration and Citizenship