On the horizon: TPP-11 countries to be exempt from 457/482 LMT; character test to be toughened

The last two weeks have seen a flurry of legislative tweaks, both passed and pending approval. A couple of matters yet to be in force are important as if or when they come into effect, may have a substantial effect on businesses, visa applicants and holders.

Labour market testing international trade exemptions for TPP-11 countries

A legislative instrument that is in force adds the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, otherwise known as the TPP-11, to be exempt from labour market testing (LMT) for Subclass 457 - Temporary Work (Skilled) and Subclass 482 - Temporary Skill Shortage nominations under international trade obligations. The signatory nations to the TPP-11 other than Australia are: Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam. That number may eventually grow as some countries (the United States and the United Kingdom in particular) have expressed interest in joining. A few of the signatory nations already have their own free trade agreements with Australia.

The instrument will, however, only be effective once the TPP-11 is ratified by a party to the agreement with their own domestic legislation. If they do not, then the instrument will never commence. Since the instrument was created, and according to none other than the prime minister, the TPP-11 will come into force for Australia on 30 December 2018, joining Canada, Japan, Mexico, New Zealand and Singapore as part of the first group to ratify. Given that not all signatories have enshrined the agreement into domestic law, this is perhaps why the previous instrument for LMT exemptions under international trade obligations has not yet been repealed.

Character test set to be strengthened

An update to this article can be found here: Character cancellations: What the media didn’t report; NZ government weighs in on new bill.

The character test, which applies to all visa holders and not only to visa applicants, is set to be strengthened should a proposed bill be passed.

The bill effectively creates a new category by which a person does not pass the character test. The character test is defined in the Act and where a visa can be refused or cancelled by the Minister. The Minister, must, however, cancel a visa if a visa holder is serving a custodial sentence in Australia for an offence and does not pass the character test because they have a substantial criminal record or has been convicted of a sexually based offence against a child. This mandatory cancellation provision, introduced in December 2014, is the reason why character cancellations have increased significantly since.

The new legislation is seeking to add to the definition of character test by adding a suite of offences known collectively as a designated offence. A designated offence is an offence against a law in force in Australia, or a foreign country, where one or more of the physical elements of the offence involves:

  • violence against a person or the threat of violence;

  • non‑consensual conduct of a sexual nature;

  • breaching an order made by a court or tribunal for the personal protection of another person; or

  • using or possessing a weapon (defined as a thing made or adapted to inflict bodily injury and where the person who has the thing intends or threatens to use it or intends it be used to inflict bodily injury).

A designated offence will also include those who have some involvement but who do not commit the physical element of a designated offence, similar to inchoate offences, including:

  • aiding, abetting, counselling or procuring the commission of a designated offence;

  • inducing the commission of a designated offence;

  • being in any way knowingly concerned in, or a party to, the commission of a designated offence; and

  • conspiring with others to commit a designated offence.

To be considered a designated offence, if committed in Australia, it must be punishable by life imprisonment, a fixed term of not less than 2 years, or a maximum term of not less than 2 years in that jurisdiction. If committed overseas, it would be benchmarked to the what the punishment would be in the Australian Capital Territory by the above standard.

While a visa holder may not receive a substantial custodial sentence, they may still find themselves facing a visa refusal or cancellation as the new legislation only requires that the designated offence has been committed, and the maximum sentence for that particular offence to be a term of not less than 2 years. This lowers the bar for what would be deemed a substantial criminal record considerably.