While recently listening to the podcast “5 Thoughts” by Thinking Basketball, I felt inspired.  I had thoughts and ideas I wanted to share, but each thought didn’t need its own article.  Instead, I followed the lead of Thinking Basketball and wrote my own version of “5 Thoughts.”

Here are three thoughts around Australian immigration, Federalism, the TS 482 visa and the GHARA trust.

Thought One: Federalism allows Australia to control the country’s borders, but Territories can also make their own rules

For the non-lawyers reading this, I would like to take you to law school and introduce you to the concept of federalism.

Federalism is the principle that is used to distribute and share the power between the different levels of Federal and State governments.  It is an essential foundation of Australian democracy and upholds the decentralisation of power which attempts to prevent one area of government from becoming more dominant than the other.  The purpose of the separation of powers between the Federal government and the State government is that both arms can ‘check’ the power of the other, to prevent one from gaining more power than the other.

The Federal Parliament can only use the powers conferred under section 51 of the Constitution to create laws, making immigration an executive power of the Commonwealth (hence the Migration Act 1958 Cth).  As such the Federal Government can legislate with regard to Australia’s borders and international travel.

However, when entering Australia, you are likely to enter via one of our seven major international airports, invariably located in one of our seven States or Territories.

And this is where it gets interesting.

And confusing.

Each State or Territory has their variation of health emergency laws, and in New South Wales (NSW), these powers are afforded to the NSW Minister for Health by the Public Health Act 2010.  The Health Minister can take any action or direction necessary to deal with the risks and consequences of COVID-19 which includes directions to reduce or remove any risk to public health in the area, to segregate or isolate inhabitants of the area, and to prevent or conditionally permit access to the area, a.k.a. the lockdown laws and border closing.

However, there has been much discourse regarding the border closures, and whether this breaches section 92 of the Constitution.  Section 92 mandates that travel between the States must be absolutely free, and it has been argued that state border closures directly breach that section of the Constitution.

In fact, a local mining billionaire, Clive Palmer, brought a case against the Western Australia Government regarding strict border closures which restricted all travellers, except those exempt, from entering Western Australia.  He challenged the constitutional validity of the border closures under section 92.

It was held by the High Court that the border closure was indeed valid, and established a precedent that the court would uphold any restrictions provided that the States can show the restrictions are:

  1. In place to protect the health of the public;
  2. Appropriate to achieving that purpose without being unduly restrictive;
  3. Apply only for so long as the crisis persists.

So who’s in charge, I hear you ask?

Despite Australia being a Commonwealth, the Federal Government has no constitutional power to force the States to:

  1. Open their borders
  2. Change the level of restrictions implemented.

That’s why all this talk about opening up only makes sense when the States are ready to do so.


Thought Two: Accredited sponsorship ensures eligible employers can quickly process new hires through the TSS 482 visa

As visa processing times balloon to seven months for the majority of subclass 482 visa applicants, it may be an important time to revisit your sponsorship and determine whether you are eligible for accreditation, which would provide the following benefits:

  1. Sponsorship is valid for six years (instead of standard 5 years);
  2. Sponsors will receive automatic priority processing of all nomination and visa applications (within a week, compared to months of processing);
  3. Streamlined processing for low-risk nominations – automatically approved after lodgement;
  4. Reduced documentation requirement;
  5. Allowing sponsors to use job postings on their internal website as one of the Labour Market Testing requirements; and
  6. Applicants who are nominated by an Accredited Sponsor are no longer required to obtain police certificates from countries (other than Australia) provided they attach a written reference from their Accredited Sponsor confirming that they are of good character and have not been convicted of any criminal offences.

Accredited Sponsorship was created to ensure that qualified lower risk sponsors get quick processing for overseas workers through the TSS 482 visa.  Accredited Sponsorship status is granted to Australian employers that demonstrate a significant and ongoing need for visa sponsorship.  One of Gilton Valeo’s goals for our clients is to ensure that they convert their sponsorship to accredited status as soon as they are able.


Thought Three: The GHARA Trust raised over $36k to support individuals with intellectual disabilities in India

Lastly, we want to congratulate the GHARA Trust on a wonderful live streaming event World for GHARA hosted by Jukebox Jammies.  There was an amazing turnout of 1,500 on the live stream and $36,435.00 was raised to support their work.

GHARA is a not-for-profit organization that provides services and support for individuals with an intellectual disability in Bengaluru, India.  GHARA stands for Group Home and Respite Association, and the organization works to build a support network for individuals and their families by running a daycare centre in Bengaluru, which currently provides a range of therapy and training for individuals with intellectual disabilities.

Gilton Valeo is a GHARA sponsor, in part because we think that as an immigration law firm it is our responsibility to support causes and organizations around the world.  GHARA’s cause is important to us, and so while this isn’t an immigration law update, it’s a law firm update, and to us, that’s important.


Gilton Valeo can answer your questions about Australia’s immigration system

As experts in Australian immigration, Gilton Valeo can guide you in identifying the best immigration pathways to bring people over to start your Australian office, provide you with strategic consulting along the way, and connect you with our partners to make sure everything goes smoothly.

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