Migration (LIN 18/183: Determination of International Trade Obligations relating to Labour Market Testing) Instrument 2018

This instrument rests on three principal statutory and conceptual building blocks which appear in the text.

1. Determination for a statutory purpose. The instrument exercises a power under subsection 140GBA(2) of the Act to make a determination for the purposes of paragraph 140GBA(1)(c) (s 3; s 6). The instrument therefore deliberately addresses a single statutory question: which international trade-related obligations are to be treated as "international trade obligations of Australia" when applying paragraph 140GBA(1)(c).

2. Relationship to "labour market testing". The instrument is expressly about "international trade obligations relating to labour market testing" (title and s 6). It records that "labour market testing is defined in subsection 140GBA(7) of the Act" (s 4). The instrument does not itself define "labour market testing" in operational terms; it relies on the Act's definition and on the operation of paragraph 140GBA(1)(c).

3. Specification of treaties and agreements. Section 6 lists the precise international agreements that are determined to contain relevant obligations. The list includes regional and bilateral free trade agreements, a plurilateral agreement, and the multilateral GATS. The named instruments are:

• Agreement Establishing the ASEAN-Australia-New Zealand Free Trade Area;
• Australia-Chile Free Trade Agreement;
• China-Australia Free Trade Agreement;
• Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP);
• General Agreement on Trade in Services at Annex 1B to the Marrakesh Agreement Establishing the World Trade Organization (GATS);
• Japan-Australia Economic Partnership Agreement;
• Korea-Australia Free Trade Agreement;
• Malaysia-Australia Free Trade Agreement;
• Protocol on Trade in Services to the Australia-New Zealand Closer Economic Relations Trade Agreement;
• Singapore-Australia Free Trade Agreement;
• Thailand-Australia Free Trade Agreement (s 6(1)-(11)).

A few further technical concepts appear in the instrument. The instrument’s commencement is conditional on the commencement of a provision in a separate amendment Act implementing the CPTPP (s 2). The instrument’s Schedule 1 repeals a predecessor instrument in full (Schedule 1). The instrument itself is short and tightly focused on the act of designation; it is not a comprehensive reform of migration law and does not purport to amend the substantive content of the Migration Act apart from creating the specified determination.

Because the instrument performs a statutory designation, the legal consequences flow through to the provision it references, paragraph 140GBA(1)(c) of the Act. The instrument does not state how that paragraph operates, which means that any analysis of downstream legal duties or rights arising from this listing requires reading the Migration Act itself, specifically paragraph 140GBA(1)(c) and subsection 140GBA(7), together with this instrument.

The instrument itself names no person or class of persons as directly regulated in the text; rather it makes a legal determination for the purposes of a specified paragraph of the Migration Act. Identifying who is affected requires attention to how that paragraph (140GBA(1)(c)) and the definition of "labour market testing" (subsection 140GBA(7)) operate in the Act. The instrument therefore has a cross-cutting potential effect on multiple categories of actors under the Act, mediated by the Act’s substantive provisions.

Primary potentially affected groups, in practical terms, include:

• migrants and prospective visa applicants whose visa eligibility, conditions or exemptions may be assessed by reference to "labour market testing" and to Australia’s international trade obligations under paragraph 140GBA(1)(c) of the Act. The instrument identifies which treaty obligations count as international trade obligations; that classification may influence the application of the Act to particular applicants where paragraph 140GBA(1)(c) is engaged.
• sponsors and employers who participate in visa sponsorship programs that have labour market testing requirements. If paragraph 140GBA(1)(c) uses these international trade obligations to alter or qualify the operation of labour market testing requirements, employers who would otherwise need to conduct certain recruitment steps may see those requirements shaped by the instrument’s designation.
• immigration practitioners, legal advisers and compliance officers who must interpret how paragraph 140GBA(1)(c) applies in cases where the listed international agreements are invoked. They will need to consult both the Act and the listed treaties to determine whether a particular obligation is engaged.
• administrative decision makers within the Department of Home Affairs and tribunal members who apply paragraph 140GBA(1)(c) of the Act. The instrument sets a legal parameter they must accept when determining what constitutes an "international trade obligation of Australia" in this context.

Because the instrument repeals the 2017 determination in full (Schedule 1), anyone who had been relying on the 2017 instrument as authoritative for the same statutory purpose must treat LIN 18/183 as the current instrument from its commencement date (s 2; Schedule 1). The instrument’s commencement is linked to the commencement of Schedule 1 to the Customs Amendment (Comprehensive and Progressive Agreement for Trans‑Pacific Partnership Implementation) Act 2018, which practitioners must identify to know when LIN 18/183 takes effect (s 2). Until that commencement occurs, the preceding instrument (if in force) or the absence of a determination governs. The instrument itself does not create direct criminal or civil liabilities; instead it changes the statutory matrix within which the Act’s substantive provisions operate, thereby affecting the legal rights and compliance obligations of the groups listed above depending on how paragraph 140GBA(1)(c) functions.

The instrument does not itself create a new freestanding duty or right; it is a statutory determination made under subsection 140GBA(2) for the purposes of paragraph 140GBA(1)(c) of the Migration Act 1958 (s 3; s 6). The immediate legal effect is therefore to classify particular treaty obligations as "international trade obligations of Australia" for that statutory paragraph. The substantive duties and rights impacted are those already embedded in the Act and in the listed treaties. The instrument affects how those duties and rights are to be identified and, by implication, applied under paragraph 140GBA(1)(c).

Explicit textual points on duties and rights from the instrument:

• The instrument is made under the statutory power in subsection 140GBA(2) (s 3). This indicates a delegated legislative act that must be read alongside the Act’s own allocation of duties and rights.
• The instrument points relevant readers to the definition of "labour market testing" found in subsection 140GBA(7) of the Act (s 4). Therefore the rights or exemptions tied to "labour market testing" are governed by the Act’s definition rather than by this instrument.

Practical contours, framed by the instrument’s text:

• If paragraph 140GBA(1)(c) confers an exemption, qualification or a constraint that depends on whether an obligation is an "international trade obligation of Australia", then this instrument fixes which treaty obligations are counted for that purpose. Consequently, the rights or exemptions afforded by paragraph 140GBA(1)(c) will be available (or not) to persons whose circumstances implicate the listed treaties.
• Conversely, any duties in the Act that require compliance subject to international trade obligations , for example, obligations to refrain from imposing measures inconsistent with trade commitments , will be measured against the treaties listed in s 6 when the issue is whether an obligation "relates to international trade".

Because the instrument does not summarise the content of the agreements listed, practitioners must consult each listed agreement and the Act to identify the specific duty or right that flows from the combination of the statutory provision and the international obligation. The instrument places an evidentiary and interpretive role on administrative decision makers and courts: they must accept that the listed agreements contain obligations that count as "international trade obligations of Australia" for paragraph 140GBA(1)(c), and then apply the Act in light of that acceptance.

It is also significant that the instrument repeals the predecessor 2017 instrument in full (Schedule 1). That repeal alters which designation is current and therefore which duties and rights are to be determined under paragraph 140GBA(1)(c) once the instrument commences. The interplay of this instrument with the Act therefore changes the statutory landscape for rights and duties only to the extent the Act looks to "international trade obligations of Australia" as a determinant.

The instrument itself contains no penalties, sanctioning provisions, or enforcement mechanisms. It is a declaratory or determinative instrument made under a power conferred by the Migration Act 1958 (s 3), and its text does not create new offences or enforcement processes. Instead, its effect is to alter the definitional or classification context within which paragraph 140GBA(1)(c) of the Act operates (s 6).

Enforcement consequences, if any, therefore flow from the substantive provisions of the Migration Act and any related regulations, not from this instrument itself. In other words, if the classification of specified treaty obligations as "international trade obligations of Australia" alters the application of duties, exemptions or restrictions within the Migration Act, any penalties that attach to breaches of those Act provisions would remain governed by the Act and other primary legislation or subordinate instruments. The instrument does not modify those sanctions.

Administratively, the instrument imposes an obligation on decision makers and on legal interpreters to treat the listed agreements as containing relevant international trade obligations for the purposes of paragraph 140GBA(1)(c). That administrative obligation is not articulated in the text as an enforceable penalty for non-compliance with the instrument itself. Any failure by a decision maker to have regard to the instrument could be challenged through the usual avenues available under the Act, judicial review principles or tribunal processes; the instrument does not establish a separate enforcement channel. The instrument’s authority is expressly provided by subsection 140GBA(2) of the Act (s 3), which is the statutory source of the power. The instrument’s repeal of the 2017 instrument likewise has no standalone penalty attached; it simply changes the operative determination that must be applied.

Practitioners should therefore look to the Act and related legislative instruments to identify precise penalties and enforcement mechanisms that could be implicated once paragraph 140GBA(1)(c) is read together with this instrument. This instrument is an input into that statutory matrix rather than a source of penal provisions.

The instrument is explicitly framed as an instrument under the Migration Act 1958 and is limited to a determinate statutory purpose. The text makes several cross‑references to other legal materials, and those cross-references shape how it interacts with existing law.

1. Primary statutory relationship to the Migration Act 1958. The instrument is made under subsection 140GBA(2) of the Act (s 3) and is expressly for the purposes of paragraph 140GBA(1)(c) (s 6). The interaction therefore is one of delegated legislative action feeding into the operation of the Act. The instrument does not amend the Act directly; instead it exercises a power conferred by the Act to identify which international trade obligations are relevant under a specified paragraph. The substantive interplay between the instrument and the Act depends on the content and legal effect of paragraph 140GBA(1)(c) and the definition of "labour market testing" in subsection 140GBA(7), both of which the instrument references (s 4; s 6).

2. Interaction with international agreements. Section 6 determines that obligations in a specific list of international agreements are to be treated as "international trade obligations of Australia" for the statutory purpose. This places those agreements within the Act’s decision‑making framework wherever paragraph 140GBA(1)(c) applies. The instrument does not itself incorporate the text of those agreements into domestic law. It makes a domestic statutory classification which triggers the Act’s internal mechanics to have regard to, or be constrained by, those international obligations as the Act provides.

3. Timing link to CPTPP implementation amendments. The instrument’s commencement is tied to the commencement of Schedule 1 to the Customs Amendment (Comprehensive and Progressive Agreement for Trans‑Pacific Partnership Implementation) Act 2018 (s 2). That linkage indicates a coordinated statutory interaction between this instrument and the legislative package implementing the CPTPP domestically. The instrument therefore does not commence until the specified provision in a separate Act commences.

4. Repeal of the earlier instrument. Schedule 1 repeals the 2017 determination instrument in full. That creates a temporal interaction between successive determinations: the 2017 instrument is no longer operative once Schedule 1 comes into effect and LIN 18/183 has commenced. Entities relying on the earlier instrument must therefore transition to the new instrument’s list of agreements once the commencement condition is satisfied.

5. No creation of regulation‑making or penalty powers. The instrument does not purport to amend regulations under the Act, nor does it affect other statutes directly. Any effect on other laws will be indirect and mediated by how the Migration Act itself interfaces with those laws. For example, if paragraph 140GBA(1)(c) interacts with workplace or immigration compliance regimes, this instrument may alter how that interaction occurs by changing which international obligations are in play.

In summary, the instrument interacts with other laws by classification and by timing. Its operative content is a domestic classification of specified international obligations for a particular provision of the Migration Act. It does not alter other Acts directly, nor does it itself amend treaty texts. The precise legal consequences therefore require reading the instrument together with the referenced provisions of the Migration Act and the listed international agreements.

This instrument is itself an amending, determinative instrument and its amendment history in the text is succinct.

• Made date and signature: The instrument is dated 25 October 2018 and is signed by the Minister for Immigration, Citizenship and Multicultural Affairs, David Coleman (instrument preamble). The instrument may be cited as LIN 18/183 (s 1(2)).

• Commencement rule: The instrument commences "immediately following the commencement of Schedule 1 to the Customs Amendment (Comprehensive and Progressive Agreement for Trans-Pacific Partnership Implementation) Act 2018" (s 2). The instrument therefore requires the user to identify the commencement timing of that separate amendment Act in order to determine when LIN 18/183 takes effect.

• Authority: The instrument is made under subsection 140GBA(2) of the Migration Act 1958 (s 3). Its legal provenance is the statutory power in that subsection.

• Replacement of an earlier instrument: Schedule 1 effects a repeal of Migration (IMMI 17/109: Determination of International Trade Obligations relating to Labour Market Testing) Instrument 2017 (F2017L01533), expressly stating "The whole of the instrument. Repeal the instrument." The effect is that the 2017 instrument is entirely replaced by this 2018 instrument for the statutory purpose addressed, once LIN 18/183 has commenced.

• No other amendments: Apart from the repeal in Schedule 1 and the primary determination in s 6, the instrument contains no other amendment or consequential modification of subordinate legislation or schedules.

Because this instrument is intended to be the updated determination replacing the 2017 instrument, practitioners should treat the 2017 instrument as superseded when LIN 18/183 is in force. There are no transitional provisions in the text specifying whether decisions made under the 2017 instrument are to be revisited; the instrument simply repeals the 2017 instrument in full (Schedule 1). Any transitional questions would therefore have to be resolved by reference to the Migration Act, other legislative instruments, or administrative practice, none of which are set out in this instrument.

The instrument’s text contains no record of litigation and does not reference any cases or judicial decisions. It is a short delegated instrument that performs a statutory determination and repeals a predecessor instrument; the instrument does not itself report any litigation outcome.

From the instrument’s content, the likely loci for litigation would be matters arising under the Migration Act where paragraph 140GBA(1)(c) is engaged and where a party seeks to contest whether certain treaty obligations should be treated as "international trade obligations of Australia" in a particular context. The instrument preempts such an issue to the extent that it expressly determines the list of agreements that constitute international trade obligations of Australia for that paragraph (s 6). Any judicial review challenge to the correctness, validity or vires of the instrument would have to engage the enabling power in subsection 140GBA(2) and the manner of its exercise. The instrument’s text provides the legislative facts relevant to such an inquiry: it was made under subsection 140GBA(2), it lists the agreements and it repeals the predecessor instrument.

Because the instrument does not elaborate the content of obligations in the listed treaties, litigation could instead surface around how paragraph 140GBA(1)(c) applies to particular factual circumstances or how "labour market testing" as defined in subsection 140GBA(7) of the Act applies. The instrument does not provide guidance on such specific factual applications.

In short, there is no litigation history recorded in the instrument. Any litigation touching on the effect of this determination would involve an analysis of the Migration Act, the listed treaties, and possibly questions about the exercise of the delegated power under subsection 140GBA(2). The instrument supplies the essential factual predicate , the list of agreements and the statutory basis for the determination , that courts or tribunals would take into account.

A number of practical points and potential pitfalls arise from the instrument’s tight drafting. These are matters that practitioners and officials commonly overlook if they read the instrument only cursorily.

1. Commencement is conditional and linked externally. The instrument does not commence on the instrument’s signing date. Section 2 provides that it commences "immediately following the commencement of Schedule 1 to the Customs Amendment (Comprehensive and Progressive Agreement for Trans‑Pacific Partnership Implementation) Act 2018". The precise date of effect therefore depends on when that separate Act’s schedule commences. Failure to check the separate legislation’s commencement date is a common source of error.

2. The instrument is purpose‑limited. It operates "for the purposes of paragraph 140GBA(1)(c) of the Act" (s 6). It does not purport to be a general statement of which treaty obligations are "international trade obligations" across the Act or other statutes. Where other parts of the Migration Act, or other laws, refer to "international trade obligations" the instrument may or may not be directly relevant depending on statutory wording.

3. It relies on definitions in the Act. The instrument records that "labour market testing is defined in subsection 140GBA(7) of the Act" (s 4). Consequently, anyone seeking to understand the operational effect must consult the Act for the statutory definition and any related guidance or regulation. The instrument does not repeat or interpret that definition.

4. The list is specific and finite. Section 6 lists eleven instruments and does not adopt an open‑ended formulation. Practitioners should not assume that other trade agreements are included unless expressly listed. The list includes GATS in a specific textual form ("General Agreement on Trade in Services at Annex 1B to the Marrakesh Agreement Establishing the World Trade Organization") (s 6(5)); procedural accuracy in naming matters.

5. Repeal of the 2017 instrument is whole‑sale. Schedule 1 repeals the entire 2017 instrument. There are no transitional provisions in LIN 18/183 that address how pending matters decided under the 2017 instrument will be treated after repeal. Users should therefore examine whether decisions made under the prior instrument remain valid, and whether administrative practice needs to be adjusted.

6. No textual elaboration of treaty content. The instrument identifies the treaties but does not summarise or import their substantive content. Determining whether a particular treaty obligation "relates to international trade" or "relates to labour market testing" will require reading the treaties and mapping their provisions against the Act’s criteria.

7. Delegated decision risk. The instrument is an exercise of delegated authority under subsection 140GBA(2) (s 3). Challenges might be mounted on the grounds of procedural fairness, jurisdictional error or statutory construction if an affected party believes the delegate exceeded the power; practitioners should note that the instrument’s legality would be assessed against the enabling provision in the Act.

8. Administrative application depends on paragraph 140GBA(1)(c). The instrument does not tell administrators how to apply the treaty obligations; it tells them which treaties to treat as relevant. The detailed application will depend on the language of paragraph 140GBA(1)(c) and its interaction with the Act more broadly.

9. Scope excludes other international obligations not listed. If a party seeks to rely on a trade-related immigration commitment from a treaty not listed in s 6, that treaty will not be treated as an "international trade obligation of Australia" for the purposes of paragraph 140GBA(1)(c) by virtue of this instrument.

10. Timing/operational alignment with CPTPP implementation. Because commencement is tied to a CPTPP implementation provision, there may be an implementation gap or overlap between migration decision practice and customs/trade implementation steps. Practitioners should coordinate cross‑agency timing.

These points are not legal conclusions but practical cautions flowing directly from the instrument’s text. They indicate where further work is needed to translate the instrument’s classificatory act into operational change.

Compliance with this instrument is indirect. The instrument does not impose recordkeeping, reporting, licensing or criminal obligations; rather it alters the statutory backdrop for paragraph 140GBA(1)(c) of the Migration Act by designating which international trade obligations are relevant. The practical compliance steps set out below are grounded in the instrument’s mechanics and the cross‑references it contains.

1. Identify the commencement date. Check the commencement date of Schedule 1 to the Customs Amendment (Comprehensive and Progressive Agreement for Trans‑Pacific Partnership Implementation) Act 2018. The instrument commences "immediately following" that commencement (s 2). Do not assume the instrument is in force from the signature date.

2. Replace reliance on the 2017 instrument. If your organisation has policies, internal guidance, or compliance flows that relied on Migration (IMMI 17/109) (F2017L01533), update those materials to reflect that the 2017 instrument is repealed in full by Schedule 1 to LIN 18/183. Ensure that any documents, forms or training referencing the 2017 instrument are amended or annotated.

3. Consult the Migration Act definitions cited. The instrument expressly notes that "labour market testing is defined in subsection 140GBA(7) of the Act" (s 4). To understand how the designation affects duties and rights, review subsection 140GBA(7) and paragraph 140GBA(1)(c) in the Act. These are the operative provisions that give legal effect to the instrument’s determination.

4. Map the listed agreements to your cases. Section 6 lists eleven agreements that are to be treated as containing international trade obligations relevant to labour market testing. For any visa application or sponsorship matter where paragraph 140GBA(1)(c) might be relevant, verify whether the circumstances implicate obligations under one of the listed agreements. Maintain a checklist linking the listed agreement to the specific visa subclass or sponsorship pathway in question.

5. Read the treaties where necessary. The instrument does not reproduce or summarise treaty obligations. Where a claim depends on the content of a treaty obligation that is now designated, read the relevant treaty provisions to determine whether the obligation "relates to international trade" and how it intersects with the Act’s criteria. Engage trade law advisers if the treaty text is complex.

6. Update decision‑making templates and reasons. Administrative decision makers should ensure that internal guidance and reasons templates reflect that the listed agreements are the relevant international trade obligations for paragraph 140GBA(1)(c). Where a decision relies on or departs from treaty obligations, include the statutory basis (this instrument and the enabling provision in the Act) in the reasons.

7. Train staff on the limited scope of the instrument. Emphasise that LIN 18/183 is a classification instrument for paragraph 140GBA(1)(c) only and does not change other parts of migration law or import treaty content into domestic law. Training should focus on the practical effect of the designation and the need to refer to the Act for substantive operation.

8. Record the legal basis in files. In cases where the designation of a treaty under s 6 is material, record the instrument’s citation and the relevant section in the case file. This will aid auditors, reviewers, and tribunals in tracing the legal basis for decisions.

9. Monitor for related legislative or administrative changes. Because the instrument’s commencement is linked to CPTPP implementation legislation and because the migration law framework can be amended, maintain a watch on legislative changes to the Migration Act, regulations, and any further instruments under subsection 140GBA(2) that might alter the list.

10. Seek legal advice for edge cases. Where there is uncertainty whether a particular treaty obligation falls within the listed agreements, or where treaty text interpretation is contested, obtain specialist legal advice. The instrument provides the classification; it does not resolve treaty interpretation questions.

Following these steps will align organisational practice with the instrument’s procedural and legal footprint. The key compliance task is to treat the listed agreements as the operative set of international trade obligations for paragraph 140GBA(1)(c) from the applicable commencement moment, and to ensure that administrative decision making and documentation reflect that legal fact.