LIN 18/219: LMT exemption: PACER Plus treaty

The commencement date of the Pacific Agreement on Closer Economic Relations Plus (and thus LIN 18/219) is yet to be determined

The Migration (LIN 18/219: Determination of International Trade Obligations Relating to Labour Market Testing) Instrument 2018 was registered on 21 December 2018 and includes the following provision:

Part 2 – Determination of international trade obligations relating to labour market testing

5        International trade obligations

For the purposes of paragraph 140GBA(1)(c) of the [Migration Act 1958], each obligation of Australia under international law, that relates to international trade, under the Pacific Agreement on Closer Economic Relations Plus is determined as an international trade obligation of Australia.

According to s 140GBA, Labour Market Testing (LMT) does not apply if ‘it would not be inconsistent with any international trade obligation of Australia’ to require LMT.

The explanatory statement to the new instrument includes the following (emphasis added):

The instrument acts alongside instrument Migration (LIN 18/183: Determination of International Trade Obligations relating to Labour Market Testing) Instrument 2018, made under the same head of power. That instrument, known as LIN 18/183, provides a list of eleven international trade agreements which the Minister determines to be an international trade obligation for the purposes of paragraph 140GBA(1)(c) of the Act. The purpose of instrument LIN 18/219 is not to repeal LIN 18/183, but to add another international trade agreement to the legislative framework, under paragraph 140GBA(1)(c) of the Act. In particular, the instrument gives domestic effect to Australia’s commitments under the Pacific Agreement on Closer Economic Relations Plus (PACER Plus) for the purposes of labour market testing.

LIN 18/219 commences ‘immediately following the commencement of Schedule 1 to the Customs Amendment (Pacific Agreement on Closer Economic Relations Plus Implementation) Act 2018which in turn commences as follows (emphasis added):

The later of:

(a) the day this Act receives the Royal Assent; and

(b) the day the Pacific Agreement on Closer Economic Relations Plus, done at Nuku’alofa, Tonga on 14 June 2017, enters into force for Australia.

However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur.

The Minister must announce, by notifiable instrument, the day the Agreement enters into force for Australia.

It is still unknown when the Pacific Agreement on Closer Economic Relations Plus will enter into force in Australia. As a result, it is still unknown when LIN 18/219 will commence.

 


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Sergio Zanotti Stagliorio is a Registered Migration Agent (MARN 1461003). He is the owner of Target Migration in Sydney. He can be reached at sergio@targetmigration.com.au