Migration (International trade obligations relating to labour market testing – India-Australia Economic Cooperation and Trade Agreement) Amendment Determination (LIN 22/105) 2022 dated 21 November 2022 inserts an additional international trade agreement, India-Australia Economic Cooperation and Trade Agreement (IAECTA), in the list of agreements for paragraph 140GBA(1)(c) of the Act for which the obligation of Australia under international law, relating to international trade, is determined as an international trade obligation of Australia.
The instrument amends Migration (International trade obligations relating to labour market testing) Determination (LIN 21/075) 2021 which determines Australia’s obligations under international trade agreements under subsection 140GBA(2) of the Migration Act 1958, to give domestic effect to those obligations for the purposes of applying the labour market testing condition. Section 140GBA of the Act sets out a condition for labour market testing that needs to be satisfied by an approved work sponsor in a prescribed class who nominates a proposed occupation in certain circumstances. Subsection 140GBA(1) provides that the labour market testing condition applies to a nomination by a person if:
- the person is, or has applied to be an approved work sponsor and
- the person nominates a proposed occupation and a particular position, associated with the nominated occupation, that is to be filled by a visa applicant or a visa holder identified in the nomination and
- it would not be inconsistent with any international trade obligation of Australia determined in a legislative instrument made under subsection 140GBA(2) to require the person to satisfy the labour market testing condition, in relation to the nominated position (paragraph 140GBA(1)(c))
For paragraph 140GBA(1)(c) of the Act, under the following agreements, each obligation of Australia, relating to international trade, under international law is determined as an international trade obligation of Australia:
- Agreement Establishing the ASEAN-Australia-New Zealand Free Trade Area (AANZFTA);
- Australia-Chile Free Trade Agreement (ACl-FTA);
- China-Australia Free Trade Agreement (ChAFTA);
- Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP);
- Free Trade Agreement between Australia and Hong Kong, China (A‑HKFTA);
- General Agreement on Trade in Services at Annex 1B to the Marrakesh Agreement Establishing the World Trade Organization (GATS);
- Indonesia-Australia Comprehensive Economic Partnership Agreement (IA‑CEPA);
- Japan-Australia Economic Partnership Agreement (JAEPA);
- Korea-Australia Free Trade Agreement (KAFTA);
- Malaysia-Australia Free Trade Agreement (MAFTA);
- Pacific Agreement on Closer Economic Relations Plus (PACER Plus);
- Peru-Australia Free Trade Agreement (PAFTA);
- Protocol on Trade in Services to the Australia-New Zealand Closer Economic Relations Trade Agreement (ANZCERTA);
- Regional Comprehensive Economic Partnership Agreement (RCEP);
- Singapore-Australia Free Trade Agreement (SAFTA);
- Thailand-Australia Free Trade Agreement (TAFTA).
The instrument amends LIN 21/075 to insert one additional international trade agreement, namely the India-Australia Economic Cooperation and Trade Agreement (IAECTA) in the list of agreements for paragraph 140GBA(1)(c) of the Act. The new international trade agreement made between Australia and India is called IAECTA. The Customs Amendment (India-Australia Economic Cooperation and Trade Agreement Implementation) Act 2022 amends the Customs Act 1901 (the Customs Act) to implement the IAECTA.
The instrument is registered on 23 November 2022 and commences on the later of the day after it is registered and the day on which Schedule 1 to the Customs Amendment (India-Australia Economic Cooperation and Trade Agreement Implementation) Act 2022 (amendment) commences. However, this instrument will not commence if the amendment to the Customs Act does not commence.
To access the instrument, click here.
