Chapter 1Introduction
1.1On 9 March 2023, the Senate referred the Migration Amendment (Australia’s Engagement in the Pacific and Other Measures) Bill 2023 (Pacific engagement bill), and the Migration (Visa Pre-application Process) Charge Bill 2023 (Chargebill) (referred to collectively as ‘the bills’) to the Senate Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 13June2023.
Conduct of the inquiry
1.2In accordance with its usual practice, the committee advertised the inquiry on its website and wrote to organisations and individuals inviting submissions by 11 April 2023. The committee received 23 submissions, listed at Appendix1.
1.3The committee held a public hearing in Canberra on 13 April 2023. A list of witnesses is provided at Appendix 2.
1.4Questions on notice and other material received by the committee are listed at Appendix 1. Submissions and the Hansard transcript of evidence may be accessed through the committee website.
1.5The committee thanks the organisations and individuals who gave evidence at the public hearing as well as those who made written submissions.
Structure of this report
1.6This report comprises two chapters:
Chapter 1 outlines the administrative details of the inquiry, provides an overview of the bills, and the background to the inquiry.
Chapter 2 discusses the key issues raised by submitters and witnesses, and sets out the committee’s views and recommendations in relation to the bills.
Overview of the bills
1.7Together, the bills would amend the Migration Act 1958 (Migration Act) to allow for the implementation of a visa pre-application process on certain visa categories and impose a charge on participants in those processes.
The Pacific engagement bill
1.8The Pacific engagement bill would amend the Migration Act to allow for a visa pre-application process to be conducted.
1.9The visa categories that would be subject to the visa pre-application process would be specified through amendments to the visa application validity requirements in the Migration Regulations 1994 (Migration Regulations).
1.10The visa pre-application process would require eligible persons to register their participation in a pool of registered participants. A number of registered participants would then be randomly selected from that pool. The successful participants may be selected through the use of a computer program.
1.11If a visa pre-application process requires the payment of a charge, that charge would be paid at the time of registration. A failure to pay the required charge at that time would prevent the applicant from registering for the visa pre‑application process.
The Charge bill
1.12The Charge bill would impose a charge on the person registering to participate in a visa pre-application process, at the time of their registration.
1.13The amount charged to the person registering to participate in the visa pre‑application process may be nil. The maximum amount charged to the person registering to participate in the visa pre-application process must not exceed $100. The maximum amount charged would be subject to annual indexation using the formula outlined in clause 10 of the Charge bill.
1.14The regulations made for the purposes of the charge bill may vary the amount charged to different:
visa pre-application processes;
classes of visa pre-application processes; and
classes of persons.
Background
1.15On 16 February 2023, the government announced that ‘[a] new Pacific Engagement Visa [PEV] will allow up to 3000 nationals of Pacific island countries (PICs) and Timor-Leste to migrate to Australia as permanent residents each year’.
1.16The PEV would complement the Pacific Australia Labour Mobility (PALM) scheme. The PALM scheme is a temporary migration program that allows eligible Australian businesses to hire workers from the Pacific and Timor-Leste for a range of short-term (up to nine months) and long-term (one to four years) job opportunities. PALM scheme workers on a valid temporary visa would be eligible to register to participate in the visa pre-application process associated with the PEV and, if they are successful in that process, apply for a PEV.
1.17Persons wishing to apply for a PEV would be required to register for a visa pre-application process that would enable them to participate in a ‘ballot to select applicants for the program’.
1.18The Explanatory Memorandum (EM) to the bills explains that a ballot system is appropriate as it is anticipated that demand for PEVs will exceed the number available each year. According to the EM, the process would provide participants with equal and transparent access to PEVs.
1.19The visa pre-application process would involve ‘an electronic random selection process that will be managed by the Department of Home Affairs [HomeAffairs]’. It is expected that it will cost $25 to register as a participant in the visa pre-application process and that registrations will be valid for one year.
1.20The EM argues that a small charge for participation is likely to be necessary as the visa pre-application process ‘may become bloated with participants who do not follow through by applying for the relevant visa’. Theapplication of a small charge at the time of registration would ‘discourage vexatious and frivolous registrations and ensure those who register have a genuine intention to apply for the relevant visa if they are successful’.
1.21Those who are selected in the visa pre-application process would be invited to apply for a PEV. Applicants may include a partner and legally dependent children in their application. To be eligible for a PEV, it is envisaged that applicants will be required to:
be aged between 18 and 45 years;
hold a passport from a participating country;
have been born in, or have a parent who was born in, a participating country;
be selected through the visa pre-application process;
secure a formal full-time job offer in Australia; and
meet English language, character, and health requirements.
1.22The Minister for Immigration, Citizenship and Multicultural Affairs, the Hon Andrew Giles MP, explained that the visa pre-application process has been designed to provide fair and equitable access to participants and is modelled on a similar visa application process that operates in New Zealand.
1.23Provided the legislation passes both Houses of Parliament, applications for the visa pre-application process would be able to be lodged with Home Affairs from July 2023.
1.24Minister Giles explained that the Pacific engagement bill:
…is a necessary first step in delivering on the government’s commitment to establish the Pacific engagement visa from July 2023, to boost Pacific permanent migration to Australia and build a stronger Pacific family.
Boosting Pacific permanent migration to Australia is an essential part of the government’s plan to build a stronger Pacific family and strengthen Australia’s ties with the Pacific.
An increase in permanent migration through the new Pacific engagement visa program will boost Australia’s people to people links across the Pacific family, and strengthen country-to-country ties.
The Pacific engagement visa will provide opportunities for skills exchange and contribute to Pacific home economies through remittances and investments. It will also support wider mobility within the region and grow Australia’s Pacific diaspora.
1.25Minister Giles further reiterated that the PEV scheme is an important part of the government’s plan to support closer connections to the ‘Pacific family’:
This is an important commitment. It will boost permanent migration from the Pacific and Timor-Leste, creating new opportunities for people to live, work and pursue their studies in Australia. It will deepen bonds between Australia and the region and enrich our communities.
1.26The Minister for International Development and the Pacific, the Hon Pat Conroy MP, supported that view:
The new Pacific engagement visa is a groundbreaking signature initiative of the government’s plan to build a stronger Pacific family. It is designed to grow the Pacific and Timor-Leste diaspora here in Australia. It reflects Australia’s special relationship with the Pacific and Timor-Leste, and reflects the importance that Australia places on this relationship and our commitment to strengthening ties with the Pacific family.
1.27He explained that people from PICs and Timor-Leste currently account for a small portion of the Australian permanent migration program and that the PEV:
…will address the under-representation of some of Australia’s closest neighbours in our permanent Migration Program. In 2021–22, less than 1,000 permanent migrants came from Pacific island countries and Timor-Leste. That’s a mere 0.7 per cent of the total migration program of 143,556 from that year.
1.28Minister Conroy also outlined the opportunities that the PEV would create for people from PICs and Timor-Leste and indicated that the new visa has been designed with input from the region:
The new visa will create new opportunities for people of the Pacific and Timor-Leste to live, work and be educated in Australia. This will deepen our bonds as people and enrich our communities and countries. Since coming into office last year, the government has been consulting with Pacific partners and Timor-Leste. These discussions have been invaluable, and we have adjusted the design of the program in response to their feedback. Letme repeat that: we have designed this program based on feedback from these countries.
1.29He indicated that consultation and feedback would continue to play an important role in the operation of the PEV program:
The introduction of this bill does not mark an end to consultations. We will continue to listen to and incorporate Pacific and Timor-Leste views through the visa’s implementation and operation. We will continue to monitor, evaluate, adjust and refine the program to ensure that this groundbreaking initiative is delivering for all engaged. Participating countries will decide on the extent and nature of their participation in the program.
1.30Successful participants in the visa pre-application process would be supported in securing employment and, once they are granted a PEV, they would have similar work rights as Australian citizens or permanent residents:
An offshore service provider will work directly with successful ballot entrants to connect them with employers in Australia, providing access to a variety of roles at a range of skill levels. The service provider will also guide successful entrants through the visa application process, deliver culturally and linguistically relevant program outreach, and help prepare visa holders for life in Australia. As permanent residents, Pacific engagement visa holders will have the choice to live and work where they prefer, and they can change employers like any Australian citizen or other permanent resident.
1.31As stated by Minister Conroy, the need to avoid ‘brain drain’ was an important consideration in the design of the PEV scheme:
We are particularly conscious of the need to ensure that, in establishing this visa, we do not deprive Pacific countries of skills and talent. That’s why we’re putting in place measures to help successful ballot entrants find employment in Australia that matches their experience and capabilities, ensuring that this program is accessible to participants from a range of backgrounds, trades and professions.
That’s why the ballot part of this visa is critical…If you do not have a ballot, you do not ensure that you address the brain drain concerns of the Pacific. That is the fundamental point of this, and that is why it’s been based on a highly successful New Zealand visa model.
1.32Minister Giles also supported the ballot:
…a ballot provides fair and equitable access where the number of people applying far exceeds the number of places available. We know ballots have been successful elsewhere — particularly in New Zealand, on whom this approach has been modelled. We also know that, by deliberately not selecting on skills, the Pacific engagement visa in fact mitigates against brain drain, proven by New Zealand's successful scheme. We are confident that remittances will be further supported by the Pacific engagement visa. Evidence suggests long-term migrants continue to remit income, and permanent residency enables this to occur over a long period of time.
Financial impact
1.33According to the EM, the information and communications technology (ICT) systems used by the department would require ‘substantial changes’ to introduce the functionality of the visa pre-application process. It is estimated that those changes would cost $1.5 million over three years from 2022–23.
1.34The cost associated with the changes to the department’s ICT systems is expected to be offset by revenue generated by the charge imposed on participants in the visa pre-application process.
1.35The EM explains that the immediate and primary purpose of the bills is to support the PEV. It notes that the 2022–23 Budget allocated $175.1 million over four years from 2022–23 and $80.3 million each year from 2026–27, to meet the anticipated costs of the PEV.
Consideration by other parliamentary committees
Senate Standing Committee for the Scrutiny of Bills
1.36The Senate Standing Committee for the Scrutiny of Bills (the Scrutiny Committee) raised issues regarding the:
significant matters that the Pacific engagement bill would defer to delegated legislation;
potential for legal error to occur when decisions are made by automated processes;
lack of specific safeguards in relation to the use of automated decision making processes; and
creation of a general power to conduct visa pre-application processes in relation to any category of visa.
1.37The Scrutiny Committee was of the view that unless a sound justification is provided for the use of delegated legislation, significant matters – including the key details of the visa pre-application process – should be included in primary legislation. The Scrutiny Committee commented that by deferring significant matters to delegated legislation, the bill may limit parliamentary oversight of the operation and requirements of the visa pre-application process.
1.38The Scrutiny Committee suggested that legal errors may occur when ‘decisions are made by a computer rather than by a person’ and that the use of automated processes may reduce transparency. It suggested:
…automated processes should generally still be subject to appropriate safeguards, such as a requirement that a person may substitute a decision made by an automated process that they consider on reasonable grounds to have been made incorrectly.
1.39The Scrutiny Committee considered that the EM ‘should explain whether all of the relevant decisions are non-discretionary and what safeguards are in place in relation to the use of automated process’.
1.40The Scrutiny Committee agreed that ‘the visa pre-application process is intended to be non-discretionary and therefore may be appropriate to automate’. It also pointed out that while the integrity of the system is important, there should be transparency and accountability in relation to the operation of the visa pre-application process. To that end, the Scrutiny Committee noted its concern about the absence of any safeguards on the use of automated processes in the bill.
1.41The Scrutiny Committee proposed that the following safeguards on the operation of automated processes could be included in the Pacific engagement bill:
ensuring publicly available information about the use and operation of the automated system;
allowing a departmental officer to review data inputted to ensure any mistakes made by an individual do not preclude them from eligibility; and
ongoing monitoring and evaluation of the computer system to ensure it is operating as intended.
1.42The Scrutiny Committee considered that the EM does not sufficiently explain the rationale for allowing the visa pre-application process to apply to any category of visa. It indicated that its concerns about the deferral of significant matters to delegated legislation ‘are heightened given the potentially broad application of the regulation making powers introduced by the bill’.
1.43The Scrutiny Committee requested advice from the Minister for Home Affairs, the Hon Clare O’Neil MP, in relation to:
why it is considered necessary and appropriate to include much of the detail of the operation and requirements of a visa pre-application process in delegated legislation;
what safeguards are in place, if any, to ensure that automated decisions will be made appropriately and not subject to legal error;
whether the bill can be amended to include specific safeguards that ensure the transparency and integrity of any automated system used; and
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.
Minister’s response
1.44The Scrutiny Committee noted that it had received the minister’s response to its request for advice, in a letter dated 23 March 2023.
1.45Minister O’Neil advised that it is necessary and appropriate for the detail of the operation and requirements of the visa pre-application process to be included in delegated legislation as ‘the migration system needs to be adaptable and responsive to economic changes’. The minister advised that primary legislation is not suitable for this purpose.
1.46The minister suggested that safeguards are unnecessary as the small number of eligibility requirements are required to be objective and the random selection process will operate using a simple algorithm.
1.47According to the minister, transparency and accountability are also heightened by the use of an automated system, as it ‘eliminates manual intervention in the process’.
1.48The minister assured the Scrutiny Committee that the general power to apply a visa pre-application process to any visa category will remain subject to disallowable future amendments to the Migration Regulations.
1.49The Scrutiny Committee did not consider the need for flexibility and responsiveness in the migration system to be an appropriate reason to defer significant matters to delegated legislation. It drew its concerns to the attention of senators and left it to the Senate as a whole to consider the appropriateness of including significant matters in delegated legislation.
1.50The Scrutiny Committee reiterated its view that safeguards are necessary to minimise and protect against the risk of errors or unintended effects associated with the use of an automated decision making process. It considered that any future review into the operation of the visa pre-application process or the establishment of a similar scheme should consider the inclusion of safeguards in primary legislation.
Parliamentary Joint Committee on Human Rights
1.51The Parliamentary Joint Committee on Human Rights reported that it had no comment on the bills.
Note on references and terminology
1.52In this report, references to Committee Hansard are to the proof transcript. Page numbers may vary between proof and official transcripts.
1.53Some of the evidence referenced in this report refers to a ‘ballot’ or ‘lottery’. These terms are used as shorthand for the visa pre-application process.