On 3 December 2024, the Department of Home Affairs announced a significant change to Australia’s skilled migration framework—the introduction of the Core Skills Occupation List (CSOL) and the Skills in Demand visa (SID). The SID is set to replace the Temporary Skill Shortage (TSS) subclass 482 visa from 7 December 2024. While this announcement presents a sweeping change, as legal practitioners, we are left perplexed. The lack of registered legislative documents formalising these changes raises serious questions about transparency, due process, and the ability to provide accurate advice to affected individuals and businesses.
The Legal Gap: An Announcement Without Legislation
Despite the fanfare surrounding the announcement, as of today, there are no registered legislative documents to support the introduction of the CSOL or the changes to the TSS visa framework. The absence of legislation creates several challenges:
- Uncertainty for Stakeholders
The CSOL is expected to impact employers, migrants, and advisors alike, but without access to the detailed legal framework, it is impossible to understand the eligibility requirements, scope, and implementation process. Employers who rely on skilled migrants are left guessing about how these changes will affect their workforce planning. - Challenges for Legal Practitioners
As immigration lawyers and advisors, we rely on formal legal documents to guide our advice. Without these documents, we are unable to provide clear, actionable advice to our clients, who may be deeply affected by the announced changes, or are seeking to form a strategy around their journey to permanent residency in Australia. This lack of clarity undermines our ability to serve our clients effectively. - Impact on Lives
Visa reforms such as these have life-changing implications for migrants and their families. The sudden announcement without any legislative backing makes it impossible for individuals to prepare adequately for the changes.
How Can Such Changes Be Made Without Legislation?
In our view, these sudden changes may have been facilitated through delegated legislation, a legal mechanism commonly used to implement migration reforms. Delegated legislation allows specific individuals or bodies, such as ministers or government departments, to create detailed rules and regulations under the authority of a parent Act, such as the Migration Act 1958.
What Is Delegated Legislation?
Delegated legislation refers to rules, regulations, and instruments created by authorised bodies under powers granted by an Act of Parliament. It enables governments to make changes without passing a new Act through Parliament.
Key features of delegated legislation include:
- Flexibility and Efficiency
Delegated legislation allows for quick responses to emerging issues, such as skill shortages, without requiring time-consuming parliamentary debates during Parliament’s sitting weeks, which are limited. - Technical and Administrative Detail
Acts of Parliament often provide the overarching framework, while delegated legislation fills in the technical and administrative details. - Parliamentary Oversight
While delegated legislation is not debated in Parliament, it is subject to scrutiny and potential disallowance within a set period (typically 15 sitting days).
How Does This Apply to the CSOL Announcement?
The CSOL announcement, and its connection to the new Skills in Demand visa, may rely on amendments to the Migration Regulations 1994 or new legislative instruments issued under those regulations. However, these documents are typically registered with the Federal Register of Legislation and made available to the public. The absence of such documentation raises concerns about the process and timeline for implementing these changes.
Why Transparency Matters
Without the publication of legislative documents:
- Legal Practitioners Cannot Advise: Lawyers and migration agents cannot review, interpret, or explain how these changes will work in practice.
- Stakeholders Are Left in Limbo: Employers and migrants cannot plan for the future without clarity on the legal framework.
- Accountability Is Undermined: The lack of transparency raises questions about whether proper scrutiny has been applied to these changes.
The Role of Delegated Legislation in Migration Policy
The use of delegated legislation in Australian migration law is not new. For example, adjustments to skilled occupation lists and visa application charges have been implemented through delegated legislation.
While delegated legislation offers efficiency, it must balance this with accountability and accessibility. Stakeholders, including legal practitioners and affected individuals, must have the opportunity to review and understand the changes before they take effect.
Final Thoughts
The announcement of the Core Skills Occupation List and the Skills in Demand visa underscores the importance of transparency and due process in immigration reform. Sweeping changes that affect lives and livelihoods must be accompanied by clear, accessible legislative documentation. Without this, we are left in the dark, unable to provide the guidance that our clients rely on.
At Kris Ahn Lawyers, we are committed to navigating these complexities for our clients. Our team, including two accredited specialists in immigration law, closely monitors legislative developments to provide timely and accurate advice. If you have questions about the CSOL or other migration policies, we encourage you to book a consultation with us for personalised assistance.
For further insights, explore more of our articles on Australian immigration law and policy:
- New Core Skills Occupation List (CSOL) to Target Australia’s Critical Workforce Needs
- Difference Between Law and Policy in Immigration
- Australian Immigration Law Changes from July 1, 2024
- Skills in Demand Visa and National Innovation Visa
- Jobs and Skills Australia Occupation Shortage List
Let us help you navigate these uncertain times with confidence. Contact Kris Ahn Lawyers today.
Disclaimer: Not Legal Advice
The information provided in this blog post/article is for general informational purposes only. It does not constitute legal advice or create a representative-client relationship. While we strive to provide accurate and up-to-date information, the content may not reflect the most current legal developments or specific circumstances.
Do not rely solely on the information presented here – but please book in a consultation with us to see how you this information applies to you and may benefit you. Any reliance on the material in this post is at your own risk.
Australian immigration law is arguably one of the most complex laws in Australia. Seek professional legal advice tailored to your individual needs before making any decisions based on the content of this post.
