Purpose of the Bill

The purpose of the Social Services and Other Legislation Amendment (Australia’s Engagement in the Pacific) Bill 2023 (the Bill) is to amend the A New Tax System (Family Assistance) Act 1999 (the FA Act), the Higher Education Support Act 2003 (the HES Act), the Social Security Act 1991 (the SS Act) and the VET Student Loans Act 2016 (the VSL Act) to:

• provide an exemption to the newly arrived resident’s waiting period for Family Tax Benefit Part A (FTB Part A), Youth Allowance (student and apprentices) and Austudy for Pacific engagement visa (PEV) holders
• allow PEV holders to access the Higher Education Loan Program (HELP) and the Vocational Education and Training Student Loan (VSL) program
• allow Pacific Australia Labour Mobility (PALM) scheme workers and their families who are in Australia to access FTB Part A, FTB Part B and the Child Care Subsidy (CCS).

The measures relating to the PALM scheme were announced in the October 2022–23 Budget (pp. 111–112).

Structure of the Bill and the Bills Digest

The Bill includes two schedules. Schedule 1 contains the amendments relating to PEV holders and Schedule 2 contains the amendments relating to the PALM scheme workers and their families.

This Bills Digest provides background to the PEV, the PALM scheme, family assistance and social security waiting periods, and student loan scheme eligibility. It analyses the key issues relating to all the proposed measures before briefly summarising the key provisions in each schedule.

Background

Pacific Engagement Visa (PEV)

At the 2022 Election, the Australian Labor Party committed to the introduction of a permanent PEV to encourage more permanent migration to Australia from Pacific Island countries. Unlike other Australian visas, PEVs are to be allocated via a ballot system. Eligible individuals can register as participants in a visa pre-application process with a capped number of visas issued through a random selection of registered participants. The PEV ballot system is modelled on New Zealand’s Pacific Access Category visa ballot. The Government has set the number of PEVs at 3,000 per year.

Funding for the Pacific engagement visa was announced in the October 2022–23 Budget (p. 150).

While the Government’s intent was to establish the visa from July 2023, Bills to establish the ballot process and to charge participants registering for the process – the Migration Amendment (Australia’s Engagement in the Pacific and Other Measures) Bill 2023 and the Migration (Visa Pre-application Process) Charge Bill 2023 – have been before the Senate since March 2023. The visa itself would be introduced via the Migration Regulations 1994. See the Bills Digest for these Bills for further background to the PEV.

To be eligible for a Pacific engagement visa, applicants will need to:

• be aged between 18 and 45
• have secured a formal ongoing job offer in Australia (or their partner/spouse must have a job offer)
• meet English language, character and health requirements
• hold a passport from a participating country
• have been born in, or have a parent who was born in, an eligible country.

Applicants can include a partner and legally dependent children in their application.

The website of the Department of Foreign Affairs and Trade (DFAT) states that eligible countries ‘could include’: the Federated States of Micronesia, Fiji, Kiribati, Nauru, Palau, Papua New Guinea, the Marshall Islands, Samoa, the Solomon Islands, Timor-Leste, Tonga, Tuvalu and Vanuatu.

Pacific Australia Labour Mobility scheme

The PALM scheme was first announced by the Morrison Government on 14 September 2021, with further details released on 23 November 2021. The scheme merged the previous Seasonal Worker Programme (SWP) and Pacific Labour Scheme (PLS) under the administration of the DFAT, taking effect on 4 April 2022.

The PALM scheme enables eligible employers to hire workers from participating countries to fill roles in unskilled, low-skilled and semi-skilled positions in rural and regional Australia, and nationally for the agriculture sector. Employers can hire workers for seasonal positions for up to 9 months or for longer-term roles for between 1 and 4 years, where not enough local workers are available. The 2 streams reflect the former SWP and PLS programs.

Countries participate in the PALM scheme by entering into a memorandum of understanding with Australia (p. 7). These countries are Fiji, Kiribati, Nauru, Papua New Guinea, Samoa, Solomon Islands, Timor-Leste, Tonga, Tuvalu and Vanuatu.

DFAT's website states that Pacific labour mobility is intended to fulfil a number of roles:

It delivers jobs for Pacific and Timor-Leste workers, enabling them to develop skills, earn income and support their families back home. Pacific labour mobility also helps create strong links between people, businesses, and communities, fostering deeper connections between Australia and our neighbours.

Pacific and Timor-Leste workers help to fill labour gaps in regional and rural Australia and offer employers access to reliable, productive workers who also contribute to the cultural and economic vibrancy of regional and rural communities across Australia.

DFAT is the lead agency, with the support of the Department of Employment and Workplace Relations (DEWR), while the Department of Home Affairs manages the visa aspects of the scheme. The PALM scheme uses a dedicated stream of the Temporary Work (International Relations) visa (subclass 403). A service provider, the Pacific Labour Facility, is contracted to manage administration of aspects of the program.

Recent developments

As a part of the October 2022–23 Budget the Albanese Government announced several changes to the PALM scheme, based on its election commitments (pp. 111–112). Key changes include allowing workers on longer-term placements to bring family members with them; expanding the scheme’s existing pilots in the aged care sector; and contributing to employers’ up-front travel costs for bringing in workers (p. 1). The changes to allow long-term PALM workers to bring family members included a commitment to provide access to FTB and the CCS (the measures included in Schedule 2 of the Bill). Family members that can accompany a PALM worker are a worker’s spouse or de facto partner or their dependent child (biological, step-child or adopted child) (p. 1).

Further changes to the PALM scheme were announced in the 2023–24 Budget (p. 119). These include strengthening oversight of the scheme by bringing its domestic delivery into DEWR; increasing resources for participating countries to enable them to mobilise more workers; supporting more than 1,000 PALM scheme workers to attain formal qualifications over 4 years; making it easier for PALM scheme workers to access their superannuation savings when they reach home; and providing access to Medicare for 200 families participating in the PALM scheme family accompaniment pilot.

Family assistance and social security residency requirements and migrant waiting periods

Eligibility for Australian Government payments is normally restricted to Australian citizens and permanent residents, with some exceptions made for particular payment categories or for groups such as refugees or New Zealanders. New permanent residents often have to serve a waiting period before they can access income support payments such as a pensions and allowances. Residency requirements determine eligibility for a payment, while waiting periods determine when an eligible person can start receiving a payment.

For working-age payments to job seekers and students – such as JobSeeker Payment, Parenting Payment, Youth Allowance and Austudy – the current newly arrived resident’s waiting period is 4 years. This waiting period commences from the later of the date the person arrived in Australia, or the date the person was granted permanent residence. Only time spent in Australia counts towards the waiting period.

For FTB Part A, the newly arrived resident’s waiting period is 1 year. FTB Part B and the CCS do not have newly arrived resident’s waiting periods but do have residency requirements: an individual must be an Australian resident or a Special Category Visa holder (New Zealand citizen) residing in Australia unless an exemption applies.

Up until the early 1990s, permanent migrants were subject to qualifying residence periods for pensions but no waiting periods applied to social security benefits such as the unemployment benefit (now known as JobSeeker Payment). Newly arrived resident’s waiting periods for unemployment and sickness benefits were introduced in 1993 (p. 9, 11). Over time, the durations of waiting periods have been extended and the number of payments subject to a newly arrived resident’s waiting period has grown. Legislation passed by the Morrison Government in 2018 extended the waiting period for payments such as JobSeeker Payment and Youth Allowance from 2 years to 4 years (applying from 1 January 2019). This legislation also introduced the newly arrived resident’s waiting period for FTB Part A. Prior to this, no newly arrived resident’s waiting period applied to any family assistance payments.

Student loan scheme eligibility

The HELP and VSL program provide loans to students studying approved higher education and vocational education and training courses, respectively. These programs allow students to defer the costs associated with study until their taxable income reaches a certain level, at which point repayments commence.

There are a number of different student loan programs:

• HECS-HELP—assists eligible Commonwealth supported higher education students to pay their student contribution amounts.
• FEE-HELP—assists domestic full fee-paying students to pay their tuition fees.
• OS-HELP—assists eligible Commonwealth-support students undertaking part of their studies overseas. Loans can be used for airfares, accommodation and other costs of overseas study.
• SA-HELP— assists eligible students to pay for all or part of their student services and amenities fee.
• STARTUP-HELP—assists eligible students participating in a pilot program supporting participation in startup or accelerator courses at higher education providers
• VET student loans— assist eligible students enrolled in higher level VET courses to pay their fees.

Eligibility for these loan programs is generally restricted to Australian citizens, permanent humanitarian visa holders who usually reside in Australia, and New Zealand citizens who meet residency criteria. New Zealand citizens must meet the following long term residency requirements (the same requirements apply to the HELP and VSL program):

• must have commenced being usually resident in Australia at least 10 years ago
• when they became usually resident in Australia, they were a child under the age of 18 with no spouse or de facto partner, and
• have been in Australia for at least 8 of the last 10 years and 18 months out of the last 2 years.

New Zealanders who have moved from a Special Category Visa to a permanent visa on the pathway to Australian citizenship can retain access to the HELP and VSL program.

Committee consideration

At the time of writing, the Bill had not been referred to any committees.

At its meeting on 9 August 2023, the Senate Selection of Bills Committee deferred consideration of the Bill to its next meeting.

Senate Standing Committee for the Scrutiny of Bills

At the time of writing, the Senate Standing Committee for the Scrutiny of Bills had not considered the Bill.

Policy position of non-government parties/independents

At the time of writing, non-government members and Independents had not commented specifically on the Bill.

In his second reading speech for the Migration Amendment (Australia’s Engagement in the Pacific and Other Measures) Bill 2023 and the Migration (Visa Pre-application Process) Charge Bill 2023, Shadow Minister for Immigration and Citizenship Dan Tehan raised concerns that PEV holders could lose employment soon after arriving in Australia and end up needing income support:

For instance, under this lottery scheme, what would happen if someone wins the lottery, is able to find a job, comes to this country and loses that job after two weeks? The government has not been able to say what will happen, and our assumption is that it will mean that that person who has won the lottery and come here as a permanent resident will get eligibility to welfare and to Medicare. The incentive to come here and work, and to continue to work, would not be there if, after a week, not liking the job that you'd come to, you would be able to have full access to welfare and to Medicare.

The Coalition Senators Dissenting Report on the Senate Legal and Constitutional Affairs Committee inquiry into these migration bills did not raise similar concerns around access to social security payments (pp. 27–32).

While the Bill proposes to exempt PEV holders from the waiting period for some student income support payments and FTB Part A, residency requirements for pensions and waiting periods for payments such as JobSeeker Payment (currently 4 years) would still apply.

Position of major interest groups

At the time of writing, interest groups and stakeholders had not commented directly on the measures in the Bill.

Various interest groups, academics and think tanks made submissions to the Senate Legal and Constitutional Affairs Committee inquiry into the bills for the PEV ballot system and pre-application charge.

In the Committee’s public hearing, representatives from the Pacific Islands Council of South Australia and the Pacific Islands Council of Queensland raised concerns that PEV holders would not have immediate access to other payments (such as JobSeeker Payment) and that where a PEV holder’s employment situation does not work out or ends suddenly, the Pacific diaspora community would have to step-in and support them. Ema Vueti from the Pacific Islands Council of Queensland suggested there should be some kind of safety net in place for situations where the PEV holder is unable to work:

The Pacific Islands Council here in Queensland has always been advocating that there be government programs so we could stop using our community diaspora to have to get things done when people are in need. PALM Queensland, we're very similar to the South Australia council, we're very involved with the support of the PALM workers and all the others communities. So, in this respect we hope that clause is amended so that it just allows that safety net, for the successful applicant not to be left and get stranded when the main breadwinner is not able to work. (p. 8)

Ben Rogers from the National Farmers Federation suggested the waiting period for access to JobSeeker and other payments could give an employer greater leverage over a PEV holder employee, which increases the potential for worker exploitation:

… But the point around the PEV worker not having access to employment support would mean, theoretically, that the employer in that situation is going to have greater leverage because, if the PEV worker loses their job and they've got their family and are paying rent, they're in deep strife. They may find it easy to find another job, but that may not. I would think that having that hanging over their head—'If I lose this job, I will have no source of income'—is going to be a pretty powerful motivator for the employee not to upset the employer, giving the employer greater power in that relationship. (p. 24)

In its Answers to Questions on Notice from the Senate Legal and Constitutional Affairs Committee, the Department of Home Affairs noted that while PEV holders would be subject to the 4-year newly arrived resident’s waiting period for JobSeeker Payment:

… PEV holders who experience a substantial change of circumstances during this waiting period, such as job loss or illness/injury, may be able to access Special Benefit, which is paid at the same rate as JobSeeker Payment (p. 2).

The Social Security Guide states that a person losing a job through no fault of their own after arriving in Australia would be considered as having a substantial change of circumstances for the purposes of Special Benefit qualification. For visas granted offshore (such as the PEV), this criteria applies where the job was arranged prior to arrival in Australia.

Financial implications

According to the Explanatory Memorandum:

• the amendments in Schedule 1 relating to PEV holders will cost $66.9 million over 4 years from 2022–23
• the amendments in Schedule 2 relating to PALM scheme workers and their families will cost $24.3 million over 4 years from 2022–23 (p. 4).

The Explanatory Memorandum notes that the costs may be lower over this period due to the measures commencing later than the date the government used in its costing (p. 4).

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible (pp. 21–27).

Parliamentary Joint Committee on Human Rights

At the time of writing, the Parliamentary Joint Committee on Human Rights had not considered the Bill.

Key issues and provisions

In his second reading speech for the Bill, Minister for International Development and the Pacific, Pat Conroy, stated the proposed measures:

… extend support and benefits to Pacific engagement visa holders so that participants have the opportunity to not just settle in Australia but pursue education opportunities and flourish in their new communities.

…

PALM scheme workers participating in family accompaniment will be able to access benefits to support them with the costs of raising a family and enable full participation of spouses in the workforce, if they choose to do so.

It recognises the invaluable contribution that people from the Pacific and Timor-Leste make to Australia and addresses the under-representation of some of Australia's closest neighbours and partners in our migration program.

It brings to the fore the importance Australia places on our relationships with the countries of this region, and upholds our commitment to strengthening ties with the Pacific family.

The Minister’s speech sets out two key reasons for expanding access to payments and student loan programs to these visa holders:

• to offer extra assistance to PEV holders and PALM workers and their families living in Australia and
• improving diplomatic and social connections with Pacific Island and Timor-Leste communities.

Access to social security and student loan programs will assist new migrants and their families

Allowing PEV holders access to student loan programs and providing immediate access to student income support payment will offer these migrants the immediate option of pursuing tertiary education. While these visa holders will be required to hold a job offer to apply for the visa, the Government has not suggested there would be any visa requirement for them to remain in that employment (p. 4). Providing eligibility for loans and student income support will allow these visa holders to pursue other opportunities or gain new qualifications after arriving in Australia. It will also open the same options to their partners and dependent children.

It is unclear how many visa holders will access these payments and loans soon after they arrive in Australia. Youth Allowance and Austudy payment rates are relatively low, when compared to wages. The maximum Youth Allowance (living away from home) and Austudy rates for someone aged 18 or older with no children is currently around $285 a week (pp. 23–24). The full-time minimum wage is currently around $883 per week. At the same time, taking on a large student loan may be concerning for a new migrant and their family.

PEV holders will not have immediate access to JobSeeker Payment

The Bill does not provide for PEV holders to have immediate access to payments such as JobSeeker Payment. Some Pacific Island community groups have suggested that there should be some kind of safety net in place for PEV holders who lose their job after arrival in Australia (see ‘Position of major interest groups’ section above).

While most other permanent visa holders are subject to the newly arrived resident’s waiting period for JobSeeker Payment and other income support payments, PEV holders are being depicted as different from the skilled and family permanent visa categories. The Explanatory Memorandum notes that Pacific and Timor-Leste nationals on a PEV ‘may be less skilled and in lower wage jobs compared to other visa holders’ (p. 23). PEV holders with low skill levels may find it harder to maintain or find employment when compared to other visa holders. There is the possibility that PEV holders are more likely to need support such as unemployment benefits sooner than other permanent visa holders and that the existing waiting period settings are not appropriate for this cohort.

As noted in the ‘Position of major interest groups’ section above, PEV holders who experience a substantial change of circumstances such as job loss or illness or injury before finishing the newly arrived resident’s waiting period, may be eligible for Special Benefit. Special Benefit is paid at equivalent rates to JobSeeker Payment and Youth Allowance (Other).

Supporting PALM workers’ families

Access to FTB and the CCS will assist long-term PALM workers who bring their families to Australia. Those eligible for FTB Part A at a rate higher than the base rate may also be able to access Rent Assistance and those eligible for the maximum FTB-A rate will be provided with a Health Care Card which provides access to cheaper prescription medicines and other concessions.

Eligibility for the CCS is partly based on an activity test which applies to both partners in a couple family. The activity test determines the number of hours of approved child care for which the CCS can be paid. For couple families, the partner with the lowest number of hours of recognised activities is used for the activity test. PALM worker families may have limited access to the CCS unless the worker’s partner is able to undertake recognised activities such as work, study or volunteering. Families with total income under $80,000 per annum can access 24 hours of subsidised care per fortnight where the number of hours in recognised activities is less than 8 hours in the fortnight.

Measures may discriminate against holders of other visas

The proposed measures will provide PEV holders and long-term PALM workers with access to benefits that many other visa holders either cannot access or must serve long waiting periods before accessing. This includes migrants in Australia from Pacific Island nations and Timor-Leste on other temporary and permanent visa classes.

The social security system already provides for differential treatment of individuals from countries with which Australia has entered into a bilateral social security agreement. These agreements tend to recognise periods of residency or contributions to another country’s social insurance system for the purposes of Australia’s social security residency requirements. In turn, the agreement country will generally recognise periods of Australian residency in determining eligibility for social security payments. Australia and New Zealand have an international social security agreement and Australia’s social security law has specific conditions for Special Category Visa holders (pp. 4–6) reflecting the longstanding arrangements for freedom of movement between the two countries.

The measures proposed in the Bill differ from these social security agreements and the arrangements for New Zealand citizens in that they are neither reciprocal nor based on bilateral agreements. The diplomatic and social connection rationale for the measures could be used to justify removing restrictions on access to the same programs for all visa holders from Pacific Island nations and Timor-Leste, and even to other countries Australia is seeking to improve relations with. The proposed measures limit the numbers involved and thus the cost, but these limitations will mean that migrants and workers from the same countries will have different access to supports and services in Australia, based on which category of visa they have been able to obtain. For example, an individual from Vanuatu who is successful in the ballot to come to Australia and then decides to study at university can access both Youth Allowance and the HELP system while a compatriot on a student visa will not be able to access either. A migrant from Fiji on a skilled permanent visa will have to serve a 4-year waiting period before being able to access student payments while their compatriot holding a PEV will not.

The proposed measures bear some similarity to the special social security and student loan arrangements for refugee and humanitarian visa holders—i.e. exemptions from waiting periods and eligibility for the HELP and VSL program. The arrangements for these visa holders are in recognition of the additional support these visa holders might require after arriving in Australia.

The Statement of Compatibility with Human Rights for the Bill states that the Bill engages the rights to equality and non-discrimination under the International Covenant on Economic, Social and Cultural Rights by:

• direct differential treatment of holders of PEVs compared to other permanent visa holders and
• direct differential treatment of eligible PALM scheme participants compared to other PALM participants and holders of other temporary visas (pp. 25–26).

The Statement of Compatibility reads: ‘To the extent that the Bill limits the right to equality and non-discrimination, this is reasonable and proportionate to achieving the legitimate purposes of family accompaniment for the PALM scheme and of the Pacific engagement visa’ (p. 26).

Key provisions

Schedule 1—Pacific engagement visa

A New Tax System (Family Assistance) Act 1999

Item 1 inserts proposed subparagraph 61AA(2)(b)(iia) to the FA Act to add Subclass 192 (Pacific Engagement) visa to the list of permanent visas exempt from the FTB Part A newly arrived resident’s waiting period.

Higher Education Support Act 2003

Item 2 repeals and substitutes subsection 90-5(1) of the HES Act so that holders of a PEV are considered to meet the citizenship and residency requirements for HECS-HELP assistance, alongside Australian citizens, permanent humanitarian visas holders and eligible former permanent humanitarian visa holders who will be resident in Australia for the duration of their study. The requirements for New Zealanders are set out in subsection 90-5(2A).

Item 4 repeals and substitutes subsection 104-5(1) so that holders of a PEV are considered to meet the citizenship and residency requirements for FEE-HELP assistance, alongside Australian citizens, permanent humanitarian visas holders and eligible former permanent humanitarian visa holders who will be resident in Australia for the duration of their study.

Item 6 proposes to amend subsection 118-5(1) so that PEV holders are eligible for OS-HELP assistance.

Item 7 repeals and substitutes paragraph 126-5(1)(b) so that holders of a PEV are considered to meet the citizenship and residency requirements for SA-HELP assistance, alongside Australian citizens, permanent humanitarian visas holders and eligible former permanent humanitarian visa holders.

Item 8 repeals and substitutes subsection 128B-30(1) so that holders of a PEV are considered to meet the citizenship and residency requirements for STARTUP-HELP assistance, alongside Australian citizens, permanent humanitarian visas holders and eligible former permanent humanitarian visa holders.

Item 10 inserts a proposed definition of Pacific engagement visa holder at subclause 1(1) of Schedule 1 of the HES Act. The proposed definition refers to a holder of the visa referred to in the regulations made under the Migration Act 1958 as a Subclass 192 (Pacific Engagement) visa or a visa determined via a legislative instrument made under new subclause 1(4) of Schedule 1 of the HES Act, inserted by item 11. Proposed subclause 1(4) of Schedule 1 allows the Minister for Education to determine, via legislative instrument, a kind of visa for the purposes of the definition of a Pacific engagement visa holder where the Minister for Immigration has advised that this kind of visa has replaced or will replace the Subclass 192 (Pacific Engagement) visa or another visa previously determined under this subclause.

Social Security Act 1991

Item 12 adds a proposed definition of Pacific engagement visa to subsection 7(1) of the SS Act. The definition is the same as that inserted into the HES Act by item 10 (above). Item 13 inserts new subsection 7(4C) which allows the Minister for Social Services to determine, via legislative instrument, a kind of visa for the purposes of the definition of a Pacific engagement visa holder where the Minister for Immigration has advised that this kind of visa has replaced or will replace the Subclass 192 (Pacific Engagement) visa or another visa previously determined under this subsection.

Item 15 inserts new paragraph 549D(7)(ba) which provides an exemption from the newly arrived resident’s waiting period for Youth Allowance for full-time students or new apprentices who hold a PEV at the time of their claim for the payment.

Item 16 inserts a similar exemption from the newly arrived resident’s waiting period for accessing Austudy via new paragraph 575D(3)(ba).

VET Student Loans Act 2016

Item 19 adds PEV holders to the list of visa holders eligible for the VET loan program at subsection 11(1) of the VSL Act.

Item 20 inserts new subsections 11(1A)–(1C) which set out definitions of permanent humanitarian visa and Pacific engagement visa. The definition of Pacific engagement visa is similar to that inserted into the HES Act by item 10 and into the SS Act by item 12.

Schedule 2—Pacific Australia Labour Mobility Scheme

A New Tax System (Family Assistance) Act 1999

Item 3 inserts new subsection 21(1B) into the FA Act which provides for certain visa holders connected with the PALM scheme to be considered eligible for the FTB. Currently, Australian residents, Special Category Visa holders and temporary visa holders who may qualify for Special Benefit (as determined by legislative instrument for the purposes of subparagraph 729(2)(f)(v) of the SS Act) meet the residency requirements for the FTB.

Proposed subsection 21(1B) provides for individuals who meet the following criteria to satisfy the Family Tax Benefit residency criteria:

• they hold a visa referred to in the regulations under the Migration Act 1958 as a subclass 403 (Temporary Work (International Relations)) visa or a visa determined by the Minister for Social Services
• the individual is a worker in the PALM scheme or the individual is a member of the family unit of a worker in the PALM scheme and
• the individual is in a class determined by the Minister for Social Services via legislative instrument.

Where the Minister for Social Services determines a visa for the criterion in the first dot point, they need to have been advised by the Minister for Immigration that a different visa has replaced or will replace the subclass 403 (Temporary Work (International Relations)) visa or another visa previously determined for this purpose.

The Explanatory Memorandum states that the class of persons to be determined by the Minister for Social Services (the criterion in the third dot point) is intended to ‘be those on a long-term PALM scheme placement who have been approved for family accompaniment and the family members of such an individual’ (p. 14). The Explanatory Memorandum states the use of delegated legislation to determine classes of eligible individuals is to ensure the class can be appropriately described given the exact PALM scheme settings and Migration regulations around family accompaniment are yet to be finalised (p. 14).

Item 5 inserts new paragraph 61AA(2)(c) to provide for visa holders connected with the PALM scheme to be subject to the newly arrived resident’s waiting period for FTB Part A.

Item 9 inserts new subsection 61AA(4A) which determines the start date of the newly arrived resident’s waiting period for individuals who have previously been on a visa connected with the PALM scheme and who then move to a permanent visa or temporary visa eligible for Special Benefit. For these individuals, the waiting period starts on the day on which the individual becomes the holder of the first of those visas (the one related to the PALM scheme) and ends when the individual has been in Australia for a period or periods totalling 52 weeks from the start date.

Item 12 inserts new subsections 61AA(5A) and (5B) which determines the newly arrived resident’s waiting period for visa holders connected with the PALM scheme where the visa is also of a kind determined by legislative instrument under new subsection 61AA(5B). The waiting period starts on the day the person become a holder of the relevant visa and ends when the individual has been in Australia for a period of, or periods totalling, 52 weeks after that day.

Section 85BB of the FA Act currently sets out the residency requirements for accessing the CCS. Item 15 adds new subsection 85BB(3) which makes certain visa holders connected with the PALM scheme eligible for the CCS. Under the proposed subsection, the CCS residency requirements will be met where an individual or the individual’s partner meets the following criteria:

• they hold a visa referred to in the regulations under the Migration Act 1958 as a subclass 403 (Temporary Work (International Relations)) visa or a visa determined by the Minister for Education where the Minister for Immigration has advised that this different visa has replaced or will replace the subclass 403 (Temporary Work (International Relations)) visa or another visa previously determined for this purpose
• the individual is a worker in the PALM scheme or the individual is a member of the family unit of a worker in the PALM scheme (within the meaning of the Migration Act 1958) and
• the individual is in a class determined by the Minister for Education via legislative instrument.

The Explanatory Memorandum states that family unit in the Migration Act 1958 includes:

a PALM scheme worker’s spouse or de facto partner; a child or step-child who is aged up to 18, or who is aged 18 to 23 and is dependent on the PALM scheme worker or their spouse or de facto partner, or who has turned 23 and is dependent on the PALM scheme worker or their spouse or de facto partner due to being incapacitated; and any dependent child of a child or step-child as described here. (p. 14)

According to the Explanatory Memorandum, it is intended that the class of persons determined by the Minister via legislative instrument will be those on long-term PALM scheme placements who have been approved for family accompaniment (p. 18).