Additional Comments from Senator Nick McKim

Introduction

1.1The Australian Greens thank everyone who made a submission and/or representation to this inquiry.

1.2Of the 23 written submissions made to the Committee’s inquiry, eight supported the Bills and proposed Pacific Engagement Visa (PEV), including two government departments; four gave implicit and/or conditional support of the Bills; seven either opposed or offered no support for the Bills, and one was out of scope.

1.3The Migration Amendment (Australia’s Engagement in the Pacific and Other Measures) Bill 2023 (the Amendment Bill) will amend the Migration Act 1958 (the Act) to provide for a visa pre-application process in the form of a ballot, as well as the power to regulate, through disallowable instruments, who is eligible to participate in a ballot, and the arrangements for the conduct of the ballot.

1.4The Migration (Visa Pre-application Process) Charge Bill 2023 (the Charges Bill)2023 provides for a fee to be charged to persons registering in a visa pre-application ballot process as provided by the Amendment Bill.

1.5These additional comments will only address evidence that the Australian Greens believe warrant further consideration than provided in the Committee report.

Future Delegated Legislation

1.6Throughout the inquiry, no witnesses expressed either support or opposition to the provision of powers to regulate who is eligible to participate in a ballot and the arrangements for the conduct of the ballot through disallowable instruments. However, when questioned in the public hearing about the appropriateness of provisions such as these to be relegated to legislative instruments, Prof. Stephen Howes, Director of the Australian National University’s Development Policy Centre, responded that this would still provide:

…the opportunity at which parliament could exercise its preferences in relation to any scheme, Pacific engagement visa or otherwise.[1]

1.7It is notable and relevant that disallowing a legislative instrument in the Senate requires 50% of the vote plus one, whereas preventing legislation from passing in the Senate requires just 50% of the vote.

Potential Scope-Creep

1.8The lack of any legislative restriction in the Amendment Bill regarding how or when the ballot system could be used in Australia's immigration program was of particular concern to the United Nations High Commissioner for Refugees (UNHCR). In its written evidence to the Committee, in which the UNHCR provided conditional support for the Bills, it recommended:

…that statutory safeguards be introduced in the [Amendment] Bill to expressly exclude the application of the ballot to visas that respond to Australia’s international refugee and human rights obligations to those seeking protection. This would include refugee and humanitarian visas and especially where the right to family unity exists.[2]

1.9The Australian Greens share this concern.

1.10Later in the hearing Acting First Assistant Secretary of the Immigration Programs Division in the Department of Home Affairs, Ms Jodie Bjerregaard, assured the Committee that:

…the government doesn't intend to utilise a lottery scheme for the refugee and humanitarian program, as that would be at odds with the principles of that program of protecting those most in need. That may help with allaying concerns with regard to that particular program.[3]

1.11This concern was also raised by the Standing Committee for the Scrutiny of Bills Committee in its Scrutiny Digest 2 of 2023:

…why it is considered necessary to provide for such a general power to create visa pre-application processes in relation to any category of visa.[4]

1.12A response from the Minister for the Department of Home Affairs, reported in Scrutiny Digest 4 of 2023, paraphrased the Amendment Bill’s Explanatory Memorandum, noting that:

…the use of a ballot is an accepted part of immigration systems around the world including the United States and New Zealand, and … Any ballot created will be subject to necessary, disallowable future amendments to the Migration Regulations 1994 (Migration Regulations).[5]

1.13However, reflecting the UNHCR’s concerns, the Scrutiny of Bills Committee rejected the Minister for the Department of Home Affairs’ response, further arguing that:

…the committee considers it is particularly important for new legislative schemes to be included within primary legislation to ensure adequate oversight and scrutiny over the proposed scheme.[6]

1.14It is worth noting that subsequent to the Bills being tabled in the House on 16February 2023, the Government’s independent review of Australia’s migration system led by Dr Martin Parkinson AC PSM tabled its report A Review of the Migration System, on 21 March 2023. Among the report’s 38 possible reform directions was:

24. Introduction of a Parent visa lottery to prevent further application backlogs.[7]

The Proposed Pacific Engagement Visa

1.15As discussed above, the Amendment Bill, despite its title, does not explicitly or exclusively provide for the proposed PEV.

1.16However most of the evidence provided by witnesses was in regards to the proposed PEV, and not the broader provisions of the Bills.

Environmental Lifeboat Legislation

1.17According to a written submission provided to the Committee from the Department of Foreign Affairs and Trade, the proposed PEV:

…is part of a wider approach to deepening Australia’s ties with the Pacific and to help build a stronger and more united Pacific family.[8]

1.18In its written evidence to the Committee, the Department of Home Affairs submitted:

The establishment of the Pacific Engagement Visa similarly recognises the special relationship we have with our Pacific neighbours and Timor-Leste. It reflects our commitment to boost Pacific permanent migration, grow the Pacific and Timor-Leste diaspora in Australia and address the under-representation of some of our closest neighbours in Australia’s permanent migration program.[9]

1.19Although neither department discussed the proposed PEV as a response to climate breakdown in the region, the Bills’ Explanatory Memorandum states:

…the Government has committed to the creation of a new class of visa, to be called the Pacific Engagement Visa (PEV), to provide access to permanent residence in Australia for an annual quota of citizens of certain Pacific countries and Timor-Leste. This will strengthen country to country ties; support wider mobility within the region, thereby assisting the future regional response to climate change pressures.[10]

1.20Written evidence provided by the Lowy Institute also considered the proposed PEV as part of Australia’s response to global warming in the region, submitting:

A standalone permanent migration pathway [like the proposed PEV] will support networks and will be key in future climate-driven migration.[11]

1.21In evidence provided by PhD candidates from the Department of Pacific Affairs of the Australian National University (ANU), Turia Moka et al:

Climate change is the single greatest threat in the Blue Pacific continent. According to the 2023 Intergovernmental Panel on Climate Change (IPCC) Synthesis Report, climate change is accelerating at a rate and frequency higher and more intense than before. The report confirmed that the world is 1.1 degrees warmer meaning there is a very thin margin between where we are now and the desired 1.5 degrees level that the Pacific has widely advocated for, but also more critically the overshoot that we are likely to cross over, if the world fails to act now. While climate change is a global phenomenon, its impacts are inequitable, it is exacerbating existing vulnerabilities in the Pacific, raising the question of climate justice for Pacific Island communities.[12]

1.22In her oral evidence to the Committee, Mrs Ema Vueti, President of the Pacific Islands Council of Queensland, submitted:

…some of those countries that are included [in the proposed PEV] are countries that are currently experiencing climate change challenges, and so that's going to be one of the focuses that we'd like to see happen with this visa.[13]

1.23However, Mrs Vueti’s colleague, Chief Executive Officer of the Pacific Islands Council of South Australia, Mr Tukini Tavui, later in his evidence submitted that:

…climate change is a specific issue. It is a problem that needs to have its own support mechanism.[14]

Regional Diplomacy

1.24Written submissions from the Department of Foreign Affairs and Trade and the Department of Home Affairs contained no discussion of the proposed PEV as a response to geo-politics in the region. However, this also was raised by witnesses to the inquiry.

1.25In its written evidence to the Committee, the Lowy Institute submitted:

In this region’s increasingly competitive geopolitical environment, it is more important than ever that Pacific Island constituents feel a connection with Australia.[15]

1.26In regards to New Zealand’s comparable Pacific Access Category visas, Prof. Howes gave oral evidence that:

These visas … have strong diplomatic advantages.[16]

1.27Expanding on this, and incorporating climate into the geopolitics of the regions, Prof. Blaxland of the Australian National University’s Strategic and Defence Studies Centre gave oral evidence to the Committee that:

We can't just be thinking about this in terms of labour and politics. There are enormous environmental implications for the Pacific on the circumstances they face. There is a degree to which we should be much more compassionate, but that is a compassion laced with self-interest. It is in our interest for these places not to implode. We do not want another RAMSI like circumstance to emerge in the Pacific.[17]

1.28Naming the elephant in the room, and reflecting on China’s recent expansion of investment and influence in the region, Prof. Blaxland further submitted that the recent tour of Pacific nations by our Foreign Affairs Minister, Senator Penny Wong, was recognition of geopolitics at play in the region, and that:

When you think about the contest that's happening in the Pacific at the moment, there is a great contest underway. What's happened in Solomon Islands with [their Prime Minister Manasseh] Sogavare … He is clearly playing his hand the best he thinks he can … credit where credit is due, he's played us and he's played China. We need to be mindful that this is the new normal and that we are in a competition for attention, for interest, for engagement and for opportunities, and if we do not compete we will be outplayed.[18]

1.29The Greens believe that the government’s desire for this legislation is at the very least driven by diplomatic imperatives as much as it is by immigration.

1.30If the Australian Government were serious about diplomacy in the Pacific it would ditch its policies that are turbo-charging climate change and threatening the very future of island nations in our region. That would lead to far better diplomatic and humanitarian outcomes than the provisions of these Bills.

1.31That the Migration Amendment (Australia’s Engagement in the Pacific and Other Measures) Bill 2023 be amended to either explicitly limit its powers to the provision of a Pacific Engagement Visa, or to explicitly prohibit the use of the powers provided in the Bill for any visa subclasses within Australia’s refugee and humanitarian program.

Senator Nick McKim

Member

Greens Senator for Tasmania

Footnotes

[1]Professor Stephen Howes, Director, Development Policy Centre, Crawford School of Public Policy, College of Asia and the Pacific, Australian National University, Committee Hansard, 13 April 2023, p. 16.

[2]United Nations High Commissioner for Refugees, Submission 12, p. 2.

[3]Ms Jodie Bjerregaard, Acting First Assistant Secretary, Immigration Programs Division, Department of Home Affairs, Committee Hansard, 13 April 2023, p. 30.

[4]Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 2/23, 8 March 2023, p. 17.

[5]Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 4/23, 30 March 2023, pp. 32–33.

[6]Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 4/23, 30 March 2023, p. 33.

[7]Department of Home Affairs, Review of the Migration System: Final Report 2023, March 2023, p. 9.

[8]Department of Foreign Affairs and Trade, Submission 7, p. 1.

[9]Department of Home Affairs, Submission 13, p. 3.

[10]Explanatory Memorandum to the Amendment Bill, p. 2.

[11]Lowy Institute, Submission 23, p. 3.

[12]Natasha Turia Moka, Akka Rimon, Michael Kabuni and Jope Tara, Submission 5, p. 2.

[13]Mrs Ema Vueti, President, Pacific Islands Council of Queensland, Committee Hansard, 13 April 2023, p. 2.

[14]Mrs Ema Vueti, President, Pacific Islands Council of Queensland, Committee Hansard, 13 April 2023, p. 2.

[15]Lowy Institute, Submission 23, pp. 4–5.

[16]Professor Stephen Howes, Director, Development Policy Centre, Crawford School of Public Policy, College of Asia and the Pacific, Australian National University, Committee Hansard, 13 April 2023, p. 12.

[17]Professor John Blaxland, Strategic and Defence Studies Centre, Coral Bell School of Asia Pacific Affairs, College of Asia and the Pacific, Australian National University, Committee Hansard, 13April2023, p. 18.

[18]Professor John Blaxland, Strategic and Defence Studies Centre, Coral Bell School of Asia Pacific Affairs, College of Asia and the Pacific, Australian National University, Committee Hansard, 13April2023, p. 19.