Migration Amendment (Work Related Visa Conditions) Regulations 2024

The Migration Act 1958 (the Migration Act) is an Act relating to the entry into, and presence
in, Australia of aliens, and the departure or deportation from Australia of aliens and certain
other persons.
Subsection 504(1) of the Migration Act provides that the Governor-General may make
regulations, not inconsistent with the Migration Act, prescribing matters required or
permitted to be prescribed, or necessary or convenient to be prescribed, for carrying out or
giving effect to the Migration Act.
Subsection 41(1) of the Migration Act provides that regulations may provide that visas, or
visas of a specified class, are subject to specified conditions.
The Migration Amendment (Work Related Visa Conditions) Regulations 2024 (the
amendment Regulations) amend the Migration Regulations 1994 (the Migration Regulations)
to enhance the labour market mobility of temporary migrants under the following visa
subclasses:

  • Subclass 457 (Temporary Work (Skilled))
  • Subclass 482 (Temporary Skill Shortage)
  • Subclass 494 (Employer Sponsored Regional (Provisional)).
  • The amendment Regulations provide current and future holders of these visas a maximum
    period of 180 consecutive days in which they may cease to work in accordance with the
    normal requirements of visa conditions that would otherwise restrict their ability to work
    outside of their sponsorship arrangement.
    During this period, a visa holder may work outside of their nominated sponsor, including in
    occupations that are not listed in their most recently approved sponsorship nomination. If a
    visa holder has ceased their existing sponsorship arrangement, then they may either search for
    a new employment sponsor while being unemployed, or engage in work until the limit of 180
    consecutive days is reached.
    The total period of time in which a visa holder may cease to work in accordance with the
    normal requirements of these visa conditions must not exceed 365 days after the
    commencement of the amendment Regulations.
    These reforms seek to reduce the dependency of certain temporary migrants on a single
    employer sponsor to maintain their lawful status in Australia. This will help to address the
    existing power imbalance, and give workers confidence to raise workplace issues, leave
    exploitation, report exploitation, and support investigations into employer conduct. The
    amendment regulations are a part of a package of reforms that addresses migrant worker
    exploitation, and they complement other measures, including the Migration Amendment
    (Strengthening Employer Compliance) Act 2024.
    Authorised Version Explanatory Statement registered 25/06/2024 to F2024L00776
    The matters dealt with in the amendment Regulations are appropriate for implementation in
    regulations rather than by Parliamentary enactment. It has been the consistent practice of the
    Government of the day to provide for detailed visa criteria and conditions in the Migration
    Regulations rather than in the Migration Act itself.
    A Statement of Compatibility with Human Rights (the Statement) has been completed in
    accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The overall
    assessment is that the amendment regulations are compatible with human rights. The
    Statement is at Attachment A.
    The Office of Impact Analysis (the OIA) has been consulted in relation to the amendments.
    The OIA considers that the Regulations are unlikely to have more than a minor regulatory
    impact and therefore no impact analysis is required. The OIA consultation reference number
    is OIA24-07058.
    The Regulations are a legislative instrument for the purposes of the Legislation Act 2003 (the
    Legislation Act).
    Section 17 of the Legislation Act provides that the rule-maker must be satisfied that
    appropriate consultation occurred in development of the legislative instrument. The
    Department has consulted other Commonwealth agencies in the course of developing the
    proposed changes to the regulations, including the Department of Employment and
    Workplace Relations (DEWR). The outcome was that DEWR and the other Commonwealth
    agencies who were consulted agreed to the proposed changes.
    The amendment Regulations commence on 1 July 2024.
    Further details of the amendment Regulations are set out in Attachment B.
    The amendment Regulations amend the Migration Regulations, which are exempt from
    sunsetting under table item 38A of section 12 of the Legislation (Exemptions and Other
    Matters) Regulation 2015. The Migration Regulations are exempt from sunsetting on the
    basis that the repeal and remaking of the Migration Regulations:
  • is unnecessary as the Migration Regulations are regularly amended numerous times
    each year to update policy settings for immigration programs;
  • would require complex and difficult to administer transitional provisions to ensure,
    amongst other things, the position of the many people who hold Australian visas, and
    similarly, there would likely be a significant impact on undecided visa and sponsorship
    applications; and
  • would demand complicated and costly systems, training and operational changes that
    would impose significant strain on Government resources and the Australian public for
    insignificant gain, while not advancing the aims of the Legislation Act.
  • The Migration Act specifies no conditions that need to be satisfied before the power to
    make the Regulations may be exercised.
    The Migration Act specifies no conditions that need to be satisfied before the power to make
    the amendment Regulations may be exercised.

Written by Ross Ahmadzai

28 Jun, 2024

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