Best Practice Principles and Standards for Skilled Migration Assessing Authorities
The Law Council of Australia provided a submission to the Department of Employment and Workplace Relations (DEWR) about its ‘Draft Best Practice Principles and Standards for Skilled Migration Assessing Authorities’ Discussion Paper.
DEWR seeks views on the draft principles and standards proposed in the Discussion Paper, on the operation of the current skills assessment system, and on ‘ideas for reform’.1 However, ‘the visa framework, migration regulations and policy settings for the various migration streams’ are beyond the remit of the Discussion Paper.2
The Law Council’s view is that ‘reform’ to the skills assessment process is required but cannot meaningfully occur without fundamentally revisiting the position of skills assessments within the Migration Regulations 1994 (Cth), where they form part of the criteria for a skilled visa.3
While skills assessing authorities (SAA) are approved by a Commonwealth Minister, there are no specific statutory criteria that determine which bodies may be approved. Further, SAA set their own standards unrestrained by any statutory criteria. There are no regulatory tools to regulate their performance, and ensure that standards set are consistent with migration law. This often produces a tension between the standards imposed by SAA and the skilled visa criteria that can be confusing to applicants, as detailed in this submission. The examples provided emphasise the need for skills assessments to be regulated under law to ensure consistency with the broader migration framework.
Skills assessment processes under the current framework can be lengthy and opaque, and are a disincentive for prospective migrants. This can effectively prevent the entry of a migrant into Australia, which in turns harms Australia’s ability to attract high-quality migrants.4 The Law Council considers that, given that skills assessments form part of the criteria for a visa, they should be determined by the Minister’s delegates. If independent assessment is required by an expert industry body, it should be based on factors determined under law and subject to external, independent merits review.5
The draft principles and standards in the Discussion Paper are generally sound and would result in a more functional system if implemented successfully. However, there is a limit to what can be achieved through these principles and standards without legislative enshrinement. If the current basic framework is retained, principles and standards should be imposed under law, and there should be regulatory tools to enforce compliance with them.
The Law Council has also responded to questions asked in the Discussion Paper.
You can read the full submission below.
1 Department of Employment and Workplace Relations (DEWR) ‘Draft Best Practice Principles and Standards for Skilled Migration Assessing Authorities’ Discussion Paper (September 2023) 4.
2 Ibid 5.
3 For example Migration Regulations 1994 (Cth) cll 186.234, 190.212, 485.224, 491.214(1)(c) and (d), and 494.224(1)(a) of Schedule 2.
4 Law Council of Australia, Submission to the Joint Standing Committee on Migration, ‘Migration, Pathway to Nation Building’ (31 March 2023) .
5 Ibid .