Commonwealth Numbered Regulations - Explanatory Statements
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MIGRATION AMENDMENT (SUBCLASS 417 AND 462 VISAS) REGULATIONS 2021 (F2021L01030)
EXPLANATORY STATEMENT
Issued by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Migration Act 1958
Migration Amendment (Subclass 417 and 462 Visas) Regulations 2021
The Migration Act 1958 (the Migration Act) is an Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons.
Subsection 504(1) of the Migration Act provides that the Governor-General may make regulations, not inconsistent with the Migration Act, prescribing matters required or permitted to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Migration Act.
In addition regulations may be made pursuant to the provisions listed in Attachment A.
The Migration Regulations 1994 (the Migration Regulations) establish arrangements whereby a working holiday maker, holding a Subclass 417 (Working Holiday) visa or a Subclass 462 (Work and Holiday) visa (collectively referred to as 'working holiday maker visas'), may choose to qualify for a second or third such visa by undertaking specified periods of work in certain industries, mainly in regional Australia.
The Migration Amendment (Subclass 417 and 462 Visas) Regulations 2021 (the Regulations) exclude work for specified businesses, which would be listed in a legislative instrument signed by the Minister, from counting towards eligibility for a second or third working holiday maker visa. The exclusion would only apply to work undertaken after the business is listed in the legislative instrument.
The Department of Home Affairs (the Department) would implement enhanced communication channels to allow visa holders to easily check the status of their employer.
The powers complement existing regulatory, compliance and awareness-raising measures with the aim of facilitating the safety and welfare of person/s undertaking work in Australia, including working holiday maker visa holders.
Considerations would include, for example, any relevant convictions and in particular those relating to safety and welfare of employees. The Minister would consider the full circumstances of every case, including by providing a right of reply, before listing a business in a legislative instrument.
The message the Government wishes to reinforce with this amendment is that any exploitation of migrant workers is totally unacceptable and will not be tolerated.
Extensive public consultation has occurred in recent years in regards to migrant worker safety, including the Migrant Workers' Taskforce and a number of Parliamentary inquiries. The amendments are consistent with calls to promote good practice and deter non-compliance.
The matters dealt with in the Regulations are appropriate for implementation in regulations rather than by Parliamentary enactment. It has been the consistent practice of the Government of the day to provide for detailed visa criteria in the Migration Regulations. The Migration Act expressly provides, in subsection 31(3), for visa criteria to be prescribed in regulations.
The current Migration Regulations have been in place since 1994, when they replaced regulations made in 1989 and 1993. Providing for these details to be in delegated legislation rather than primary legislation gives the Government the ability to respond quickly to emerging situations.
A Statement of Compatibility with Human Rights has been completed in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011, and is at Attachment B.
Details of the Regulations are set out in Attachment C.
The Department consulted with the Attorney-General's Department. As the changes are being made as an initiative in addition to measures to strengthen the protection of working holiday makers, further external consultation was not considered necessary or appropriate. This accords with subsection 17(1) of the Legislation Act 2003 (the Legislation Act), which requires that the rule-maker must be satisfied that there has been undertaken any consultation that is considered by the rule-maker to be appropriate and reasonably practicable.
The Office of Best Practice Regulation (OBPR) advised that a Regulation Impact Statement is not required (OBPR reference 43947).
The Migration Act specifies no conditions that need to be satisfied before the power to make the Regulations may be exercised.
The Regulations commence on the day after they are registered on the Federal Register of Legislation.
The Department follows standard practices to notify clients about the Regulations, including updating its website and notifying peak bodies.
The Regulations are a legislative instrument for the purpose of the Legislation Act.
ATTACHMENT A
Subsection 504(1) of the Migration Act 1958 (the Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
In addition, the following provisions are relevant:
* subsection 31(1), which provides that there are to be prescribed classes of visas; and
* subsection 31(3), which provides that the regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by sections 32, 36, 37, 37A or 38B but not by sections 33, 34, 35, 38 or 38B of the Act).
ATTACHMENT B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration Amendment (Subclass 417 and 462 Visa) Regulations 2021
This Disallowable Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Disallowable Legislative Instrument
The Migration Amendment (Subclass 417 and 462 Visa) Regulations 2021 amends the Migration Regulations 1994 (the Regulations) to prevent work for certain employers being counted towards eligibility for a subsequent Working Holiday Maker visa (WHM visa).
The WHM program consists of two visa subclasses namely:
* the Work and Holiday (Subclass 462) visa; and.
* the Working Holiday (Subclass 417) visa
Both WHM visas are granted with a 12-month stay period. .
The key differences between the two visas are that the Work and Holiday (Subclass 462) visa arrangements generally have caps on the number of visas granted annually (except for the United States of America) and include additional eligibility requirements such as a minimum education level, English language proficiency or letters of support from a partner country Government. The Working Holiday (Subclass 417) visa arrangements are uncapped with no limit on the annual number of visa grants.
There are incentives for people who have been granted a WHM visa to work in locations and industries specified for this purposes by the Minister, referred to as 'specified work'. While people who have been granted a WHM visa can work in any area or industry, a person who has held their first WHM visa in Australia (having never been previously in Australia as a holder of a WHM visa) may then be granted a second visa if they have carried out at least three months of specified work. If a person undertakes at least six months of specified work whilst holding their second WHM visa, they are then eligible to be granted a third WHM visa.
There are variances of specified work based on subclasses:
* for the Working Holiday (Subclass 417) visa - construction, fishing and pearling, plant and animal cultivation, mining and tree farming and felling in regional Australia is considered specified work;
* for the Work and Holiday (Subclass 462) visa - construction and plant and animal cultivation in Northern and regional Australia, and fishing and pearling, tree farming and felling, and tourism and hospitality in Northern Australia is considered specified work; and
* for both WHM visas - bushfire recovery work in declared disaster areas and critical COVID-19 work in the healthcare and medical sectors anywhere in Australia is also specified work.
The main purpose of the WHM program is to build people-to-people and cultural links between Australia and partner countries. While people who have been granted a WHM visa can choose to supplement their holiday with short-term employment, employment is not the primary objective of the visa.
The message the Government wishes to reinforce with this amendment is that any exploitation of migrant workers is totally unacceptable and will not be tolerated.
Exploitation of any worker is unacceptable, and is recognised to have serious consequences, including adverse impacts on the worker's human rights. Any exploitation by an employer of a person who has been granted a WHM visa could be viewed as undermining the intention of the visa program (i.e. does not foster positive cultural links for a worker with Australia) and damages Australia's reputation as a safe and welcoming destination.
The new measure is intended to enhance protection for people who have been granted WHM visas by identifying employers who may pose a risk to the safety or welfare of a person, for example with reference to relevant convictions, and regulating that working for such employers will not count as specified work for the purposes of qualifying for a second or third Working Holiday (Subclass 417) or Work and Holiday (Subclass 462) visa. This measure would dissuade people who have been granted WHM visas from engaging in work for those employers The Department of Home Affairs (the Department) would implement enhanced communication channels to allow visa holders to easily check the status of their employer.
Human rights implications
These amendments have been assessed against the seven core international human rights treaties and engage the following rights:
* Right to work and rights in work - Articles 6 and 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)
* Right to privacy - Article 17 of the International Covenant on Civil and Political Rights (ICCPR)
* Right to presumption of innocence and prohibition on double jeopardy- Article 14 of the ICCPR
Right to work in Article 6 of the ICESCR
The amendment engages Article 6(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which states that:
The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.
The amendments to the Regulations exclude work undertaken by WHM visa holders for certain employers specified in an instrument, as constituting "specified work" for the purpose of eligibility for a subsequent WHM visa. Noting that WHM visa holders may choose to work for any employer or employers, across the breadth of regional Australia, there is only a small likelihood theamending regulations therefore may adversely impact the right to work of a Working Holiday Maker if they are unable to obtain a subsequent visa as a result of working for an excluded employer.
It is intended that the instrument lists only employers (being a person, partnership or unincorporated association) who pose a risk to the safety or welfare of a person performing work in their employment. The intention of this measure is to dissuade working holiday makers from working with these employers, although it does not prevent them from doing so.
It is intended that working holiday makers will be able to access details of employers on the instrument which will encourage them seek alternative employment, if they choose to do so. Further, it is intended that there would be communication with WHM visa holders through the departmental website and other available means.
A WHM visa holder may freely choose or accept to continue working for an employer who is included on the legislative instrument. The consequence of doing so may only impinge on their ability to obtain a subsequent WHM visa, namely that work done for that employer will not count as specified work for the purposes of qualifying for a second or third WHM visa. The potential impact on the right to work for WHM visa holders is non-existent in circumstances where they simply do not seek to obtain a further WHM visa. Noting that the amendments in any event are aimed at ensuring the WHM holder's protection and safety and that it is optional for them to freely choose to continue working for an employer who is included on the legislative instrument, in the circumstances the amendments are proportionate to the potential risk posed.
Rights relating to conditions of work
Article 7 of the ICESCR states:
The States Parties to the present Covenant recognize the right of everyone to
the enjoyment of just and favourable conditions of work which ensure, in
particular:
...
(b) Safe and healthy working conditions; ...
The broad aim of the amendments made by this Disallowable Legislative Instrument is to assist WHM visa holders in finding employment with safe and healthy working conditions by dissuading them from commencing or continuing employment with an employer who may pose a risk to their safety or welfare, if they wish to apply for a subsequent WHM visa.
The amendments therefore promote this right and similar rights contained in the Convention on the Elimination of All Forms of Discrimination Against Women.
Rights relating to privacy
Article 17(1) of the ICCPR states:
No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
Pursuant to Article 17(1) of the ICCPR, any interference with an individual's privacy must have a lawful basis. In addition to requiring a lawful basis for limitation on the right to privacy, Article 17 prohibits arbitrary interference with privacy. Interference which is lawful may nonetheless be arbitrary where that interference is not in accordance with the objectives of the ICCPR and is not reasonable in the circumstances.
The measure is intended to enhance protection of WHM visa holders by identifying certain employers and regulating that working for such employers will not count as specified work for the purposes of eligibility for a subsequent Working Holiday (subclass 417) visa and Work and Holiday (Subclass 462) visa.
The intention is that the instrument would list employers, (being a person, partnership or unincorporated association) who pose a risk to the safety or welfare of a person performing work in the employment, or under the supervision, of the employer. The instrument intends to include the minimum level of information necessary in order to identify the employer. This could include all or any of (a) the name of the person, partnership or unincorporated association (b) the ABN or (c) any other information that identifies the person, partnership or unincorporated association. The identification and outlining of these three categories of 'information' has been included so that the minimum personal information is disclosed whilst ensuring that cases of 'wrong identity' do not occur.
Importantly, the instrument itself will not specify why the Minister has determined that an employer has been included. Such omission protects the employer's right to privacy.
In including an employer on this list, the Minister can take into account previous convictions for offences such as those relating to the safety and welfare of persons, including employees. This would include taking into consideration convictions that have been quashed/pardoned and convictions for less serious offences than would usually be prohibited from use and disclosure under the Commonwealth Spent Convictions scheme.
A link to the instrument and the explanatory statement would be provided to all WHM visa holders through our website and other available means.
Where the listing of the employer identifies an individual or allows an individual to be identified, this may impact the right to privacy of that individual. However the mitigating factors noted above are aimed at ensuring that any disclosure of personal information will not be an unlawful or arbitrary interference with an individual's privacy or an unlawful attack on their reputation. Inclusion on the instrument will only occur after Ministerial consideration of the full circumstances and where it is necessary to ensure the protection and safety of WHM visa holders and proportionate to potential privacy risks.
Right to presumption of innocence and prohibition on double jeopardy
This Disallowable Legislative Instrument may engage the right to the presumption of innocence under Article 14(2) of the ICCPR and the prohibition on double jeopardy in Article 14(7) of the ICCPR, which state:
2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.
The Disallowable Legislative Instrument creates a power for the Minister to specify an employer be included in an instrument if the Minister is satisfied that the employer poses a risk to the safety and welfare of a person performing specified work in their employment or under their supervision. The Minister may also take into consideration convictions that have been quashed/pardoned and convictions for less serious offences than would usually be prohibited from use and disclosure under the Commonwealth Spent Convictions scheme.
Even where a natural person (as opposed to a business entity) is listed in an instrument, this is unlikely to engage Article 14 as the listing does not affect the presumption of innocence in a court proceeding. In addition, the listing does not result in a penalty or punishment for the employer. Rather it may affect whether WHM visa holders, and potentially other employees, wish to continue working for that employer.
The proposed powers are broad in scope but are necessary to allow the Minister to respond to all cases of abuse, particularly where there has been a conviction for serious offences. The Minister would consider the full circumstances of every case before listing a business in a legislative instrument.
Should Article 14 be engaged in a particular case, this will have been where the Minister considered it reasonably and necessary for an employer to be listed in an instrument.
Conclusion
The measures in this Disallowable Legislative Instrument are for the legitimate purpose of protecting WHM visa holders within the Australian community. By excluding work done for certain employers specified in an instrument as constituting "specified work", holders of WHM visa will be encouraged to make informed decisions about their employment, safety and welfare.. This is compatible with human rights because it promotes the protection of human rights of people who have been granted a WHM visa. To the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate to the objective.
ATTACHMENT C
Details of the Migration Amendment (Subclass 417 and 462 Visas) Regulations 2021
This section provides that the name of the instrument is the Migration Amendment (Subclass 417 and 462 Visas) Regulations 2021 (the Regulations).
Section 2 - Commencement
This section provides for the commencement of the instrument.
Subsection 2(1) provides that each provision of the regulations specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
The table states that the regulations would commence on the day after registration on the Federal Register of Legislation.
A note clarifies that this table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.
Subsection 2(2) provides that any information in column 3 of the table is not part of the regulations. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument. Column 3 of the table provides the date/details of the commencement date.
Section 3 - Authority
This section provides that the instrument is made under the Migration Act 1958 (the Migration Act).
Section 4 - Schedules
This section provides for how the amendments in the regulations would operate.
Item [1] - Regulation 1.03
This item inserts a definition of carried out for an excluded employer in regulation 1.03 of the Migration Regulations. The definition links to the explanation of this term at proposed regulation 1.15FB (item 2 below).
Item [2] - After regulation 1.15FA
This item inserts regulation 1.15FB in the Migration Regulations, to define the meaning of carried out for an excluded employer, which is a term used in the substantive amendments made by the items below to exclude certain work from counting towards eligibility for a second or third working holiday maker visa.
Subregulation 1.15FB(1) covers work by working holiday maker visa holders occurring under a variety of possible business and employment arrangements, noting that businesses may be operated by natural persons, companies, partnerships, and unincorporated associations, and work in the business may involve the use of contractors and subcontractors. The intention is to cover work for, or for the benefit of, a business listed in a legislative instrument under subregulation 1.15FB(2), regardless of the legal structure of the business or the employment and contractual arrangements that are in place.
Subregulation 1.15FB(2) provides that the Minister may, by legislative instrument, specify a person, partnership or unincorporated association (the employer) if the Minister is satisfied that (a) the employer poses a risk to the safety or welfare of a person performing work in the employment, or under the supervision, of the employer; or (b) the performance of work in the employment, or under the supervision, of the employer poses a risk to the safety or welfare of a person. Paragraph 1.15FB(2)(a) covers situations where the employer poses the relevant risk. Paragraph 1.15FB(2)(b) covers situations where the employer (e.g. a company) does not directly pose the relevant risk, but the risk is posed by others working in the business.
Businesses will be provided with an opportunity to make submissions prior to listing in a legislative instrument, in accordance with the principles of procedural fairness. It is envisaged that the power would generally only be exercised in cases involving relevant criminal convictions. To the extent that the Crimes Act 2014 permits the Minister to take into account previous convictions, including convictions that have been quashed/pardoned or convictions for less serious offences that would usually be prohibited from use and disclosure under the Commonwealth Spent Convictions scheme, it is not envisaged that this would occur. The exercise of the discretion to list a business in a legislative instrument would be focussed on recent offending that suggests a current risk to working holiday makers.
There is no provision for an employer to seek merits review of the Minister's decision to list a business in a legislative instrument. The Government does not consider that merits review is appropriate in this context, as the amendments do not prevent the individual or business from continuing to operate, or from employing workers.
The effect of the listing is that working holiday maker visa holders cannot count future work for the business towards eligibility for a second or third working holiday maker visa. Nevertheless, a working holiday maker visa holder may freely choose or accept to continue working for an employer who is included on the legislative instrument.
In light of the above, the decision to exclude merits review of the Minister's decision is consistent with the established grounds for excluding merits review set out in the Administrative Review Council guidance document, What decisions should be subject to merit review? In particular, the decision would be a decision which has such limited impact that the costs of review cannot be justified (see paragraphs 4.56 and 4.57).
Subregulation 1.15FB(3) ensures that the Minister has flexibility to identify a business by any appropriate means, which include the specified methods of listing the name of the person, partnership or unincorporated association, or the Australian Business Number, or any other information that identifies the person, partnership or unincorporated association. This approach has been adopted to ensure that the Minister has the flexibility to ensure that the relevant businesses are clearly identifiable to holders of working holiday maker visas. The power would be exercised by the Minister having regard to privacy considerations and, wherever possible, would avoid naming individuals. An individual would only be named if no other means of identifying the business was possible. It is anticipated that specifying an individual by name in the legislative instrument wold be a rare occurrence.
A 'Note' points out that proposed subregulation 1.15FB constitutes an authorisation of disclosure of information for the purposes of the Privacy Act 1988 and other laws (including the common law).
Item [3] - At the end of subclause 417.211(5) of Schedule 2
This item inserts new paragraph 417.211(5)(d) into the criteria for the grant of Subclass 417 (Working Holiday) visas in Schedule 2 to the Migration Regulations.
Subclause 417.211(5) provides eligibility for the grant of a second Subclass 417 visa if the applicant has carried out at least three months of 'specified Subclass 417 work' (defined in regulation 1.03 and regulation 1.15FAA of the Regulations) as the holder of the visa and the applicant has been remunerated for the work in accordance with relevant Australian legislation and awards.
The effect of paragraph 417.211(5)(d) is that the specified Subclass 417 work cannot be counted towards the required three months if the work was carried out for an excluded employer. The meaning of carried out for an excluded employer is explained above at item 2. This means that, if an employer is listed in a legislative instrument under subregulation 1.15FB(2), work carried out for the employer after that time cannot be counted. Work carried out for the employer before they are listed in the legislative instrument can still be counted, provided that the usual requirements are met. This removes any incentive for working holiday maker visa holders to continue working in employment where the Minister has decided that there a risk to the safety or welfare of working holiday makers in that employment.
Item [4] - At the end of subclause 417.211(6) of Schedule 2
This item inserts new paragraph 417.211(6)(f) into the criteria for the grant of Subclass 417 (Working Holiday) visas in Schedule 2 to the Migration Regulations.
Subclause 417.211(6) provides eligibility for the grant of a third Subclass 417 visa if the applicant has carried out at least six months of 'specified Subclass 417 work' (defined in regulation 1.03 and regulation 1.15FAA of the Regulations) as the holder of the visa and the applicant has been remunerated for the work in accordance with relevant Australian legislation and awards.
The effect of paragraph 417.211(6)(f) is that the specified Subclass 417 work cannot be counted towards the required six months if the work was carried out for an excluded employer. The meaning of carried out for an excluded employer is explained above at item 2. This means that, if an employer is listed in a legislative instrument under proposed subregulation 1.15FB(2), work carried out for the employer after that time cannot be counted. Work carried out for the employer before they are listed in the legislative instrument can still be counted, provided that the usual requirements are met. This removes any incentive for working holiday maker visa holders to continue working in employment where the Minister has decided that there a risk to the safety or welfare of working holiday makers in that employment.
Item [5] - At the end of subclause 462.218(1) of Schedule 2
This item inserts new paragraph 462.218(1)(d) into the criteria for the grant of Subclass 462 (Work and Holiday) visas in Schedule 2 to the Migration Regulations.
Clause 462.218 provides eligibility for the grant of a second Subclass 462 visa if the applicant has carried out at least three months of 'specified Subclass 462 work' (defined in regulation 1.03 and regulation 1.15FA of the Regulations) as the holder of the visa and the applicant has been remunerated for the work in accordance with relevant Australian legislation and awards.
The effect of paragraph 462.218(1)(d) is that the specified Subclass 462 work cannot be counted towards the required three months if the work was carried out for an excluded employer. The meaning of carried out for an excluded employer is explained above at item 2. This means that, if an employer is listed in a legislative instrument under proposed subregulation 1.15FB(2), work carried out for the employer after that time cannot be counted. Work carried out for the employer before they are listed in the legislative instrument can still be counted, provided that the usual requirements are met. This removes any incentive for working holiday maker visa holders to continue working in employment where the Minister has decided that there a risk to the safety or welfare of working holiday makers in that employment.
Item [6] - At the end of subclause 462.219(1) of Schedule 2
This item inserts new paragraph 462.219(1)(f) into the criteria for the grant of Subclass 462 (Work and Holiday) visas in Schedule 2 to the Migration Regulations.
Clause 462.219 provides eligibility for the grant of a third Subclass 462 visa if the applicant has carried out at least six months of 'specified Subclass 462 work' (defined in regulation 1.03 and regulation 1.15FA of the Regulations) as the holder of the visa and the applicant has been remunerated for the work in accordance with relevant Australian legislation and awards.
The effect of paragraph 462.219(1)(f) is that the specified Subclass 462 work cannot be counted towards the required six months if the work was carried out for an excluded employer. The meaning of carried out for an excluded employer is explained above at item 2. This means that, if an employer is listed in a legislative instrument under subregulation 1.15FB(2), work carried out for the employer after that time cannot be counted. Work carried out for the employer before they are listed in the legislative instrument can still be counted, provided that the usual requirements are met. This removes any incentive for working holiday maker visa holders to continue working in employment where the Minister has decided that there a risk to the safety or welfare of working holiday makers in that employment.
Item [7] - In the appropriate position in Schedule 13
This item inserts a new Part 97 into Schedule 13 to the Migration Regulations. Schedule 13 is the location of application and transitional provisions for amendments to the Migration Regulations.
Subclause 9701(1) would provide that the amendments made by the Migration Amendment (Subclass 417 and 462 Visas) Regulations 2021 apply in relation to any visa application made after the commencement of the amendments.
In addition, to avoid doubt, subclause 9701(2) would provide that to the extent that the visa application relates to work carried out before commencement of the amendments, new paragraphs 417.211(5)(d), 417.211(6)(f), 462.218(1)(d) and 462.219(1)(f) of Schedule 2 (as inserted by the items above) do not apply in relation to that work.
As explained above, the effect of new paragraphs 417.211(5)(d), 417.211(6)(f), 462.218(1)(d) and 462.219(1)(f) is that the only work that cannot be counted towards eligibility for a second or third Subclass 417 or Subclass 462 visa is work undertaken for the employer after the employer has been listed in a legislative instrument.