Chapter 2Key issues
2.1This chapter outlines key issues raised in evidence to the committee about the bills, including the:
design of the Pacific Engagement Visa (PEV) scheme;
transparency and integrity of the visa pre-application process; and
compatibility of the PEV with the Pacific Australia Labour Mobility (PALM) scheme.
2.2This chapter also articulates the committee's views and recommendation in relation to the bills.
Design of the Pacific Engagement Visa scheme
2.3Evidence received by the committee discussed the following elements of the design of the PEV scheme:
participation of Pacific Island countries (PICs) in the PEV scheme;
use of a ballot in the visa pre-application process and the charge associated with it; and
the lack of immediate access to the JobSeeker payment for newly arrived residents under the PEV scheme.
Participation of Pacific Island countries in the Pacific Engagement Visa scheme
2.4Some submitters were concerned that citizens from some PICs would not have access to the PEV scheme. For example, the Niue Advisory Council of Queensland (NACQ) expressed concern that citizens of several PICs 'are being excluded'. The NACQ argued that not including those countries in the PEV scheme sent:
…the signal that the Cook Islands, Niue, Tokelau, New Caledonia and French Polynesia are irrelevant to the work of the Australian Government in terms of its engagement in the Pacific.
2.5The Cook Islands Council of Queensland shared that view and recommended that those countries ‘should be treated the same as the rest of the Pacific covered by this scheme’.
2.6Similarly, the Pacific Islands Council of South Australia (PICSA) supported giving 'Pacific communities right across the region' access to the PEV. However, Mr Tukini Tavui, Chief Executive Officer of PICSA, also recognised that the PEV scheme is designed to provide opportunities to those PICs that do not currently have pathways to migrate to Australia.
2.7The Development Policy Centre, ANU (Development Policy Centre) pointed out that the Cook Islands, Niue, and Tokelau have 'unrestricted' migration access to New Zealand, while Tonga, Samoa, and Tuvalu have ‘generous’ migration access to New Zealand. It also noted that most of the Pacific Islander diaspora in Australia migrated from Polynesian countries after becoming New Zealand citizens.
2.8Professor Stephen Howes explained that the Cook Islands and Niue do not issue their own passports and their citizens are eligible to apply for New Zealand passports. Cook Islanders and Niueans:
…already have special access to Australia because they have New Zealand passports. Any New Zealander can migrate to Australia at any point in time and stay for as long as they want. They don't have all the benefits of permanent residency, but for all intents and purposes they are entitled to be permanently resident in Australia.
2.9Dr Rochelle-Lee Bailey noted that many Pacific Islanders would prefer to engage directly with Australia rather than 'coming through the New Zealand pathway'.
2.10The Cook Islands Council of Queensland expressed a similar view, submitting that the PEV scheme should be broadened to include citizens of PICs that have residency rights in New Zealand. It maintained that the Cook Islands are a 'distinct nation', and that Cook Islanders are not 'just "Kiwis"'.
2.11In a similar vein, the Lowy Institute submitted that diaspora communities are more likely to develop a strong connection with Australia if they migrate directly rather than via another country.
2.12As the PEV scheme would operate on a passport basis, opening it to countries that do not issue their own passports would effectively open it to New Zealand citizens as well. To avoid that situation, Professor Howes proposed that the PEV scheme could operate on 'a sort of heritage basis'.
2.13The Department of Foreign Affairs and Trade (DFAT) explained that the objective of the PEV 'is to build the healthy, engaged and resilient diaspora' of countries that are underrepresented in the Australian population.
2.14DFAT further noted that citizens of New Zealand, who have a New Zealand passport, 'already have access to Australia through the 444 visa…So we already have a very substantial, healthy, active and engaged diaspora from those countries [the Cook Islands and Niue] in Australia'.
2.15DFAT submitted that partner governments have welcomed consultations on the PEV scheme and noted that the scheme 'has been shaped by Pacific and Timor‑Leste voices which will continue to play a critical role in informing implementation and operation of the program'.
2.16DFAT indicated that PICs and Timor-Leste have been, and will continue to be, consulted in:
…the design, implementation and operation of the Pacific Engagement Visa. Countries will be able to participate in ways that meet their own domestic needs and priorities. Importantly, partner countries can opt-in or out of the program as these needs change, including requesting a lower visa allocation (or higher where excess visas are available) to ensure the program delivers on shared aspirations.
Use of a ballot in the visa pre-application process and the charge associated with it
2.17Some of the evidence received by the committee questioned the use of a ballot in the granting of PEVs. For example, the Fiji Community Association of Queensland Inc voiced its preference for a merit-based visa system:
We also find the basic tenant of the lottery to be one that shows a disrespect to our people. Our community will always thrive when we are given the chance to meet a standard set. A lottery removes that concept and leaves it to pure luck. This lack of criteria reduces the value of our community inside the migration system. We thrive and delight on merit-based visas.
2.18The Development Policy Centre suggested that, based on the New Zealand experience with a visa scheme similar to the proposed PEV, there is likely to be ‘massive excess demand [for PEVs and] there has to be a way to ration places’. It suggested that the number of PEVs could be rationed by either implementing a ballot system or by allocating visas to the most skilled applicants.
2.19According to the Development Policy Centre, the allocation of PEVs based on ‘a skills-based points scheme…would give rise to much greater risks of brain drain’ than a ballot system. It also noted that allocating PEVs based on skills assessments would ‘give rise to the suspicion that Australia was introducing the PEV not to help the Pacific, but to help itself’.
2.20Professor Howes suggested that 'given the strategic intent of this visa, it would be a diplomatic own goal' to allocate PEVs on the basis of skills. He went on to say that studies of similar ballot systems used by the United States of America and New Zealand indicate that they have been 'very well received and have strong diplomatic advantages'.
2.21Mrs Ema Vueti of the Pacific Islands Council of Queensland noted that the United States and New Zealand successfully use ballot systems in their immigration systems. She stated that PICs that have been invited to participate in the PEV scheme 'welcome the ballot system because it would assist in reducing the chances for brain drain in their countries'.
2.22Mrs Vueti also argued that the ballot system would take pressure off the public service of PICs. She explained that without the ballot system PICs may 'have to be thinking about the budget being increased for those departments that are responsible for making the assessments'.
2.23The National Farmers Federation (NFF) recognised the concerns held by Pacific nations in relation to ‘brain drain’, but suggested:
…the inadvertent outcome of requiring PEV applicants to have a job lined‑up in Australia will be a prioritisation of workers who are more likely to receive job offers in Australia. This will likely mean that the PEV will be skewed toward skilled workers and those with established connections in Australia such as PALM workers.
2.24For that reason, the NFF maintained that ‘[t]he ballot system does not provide a meaningful safeguard to the Pacific’s brain drain concerns’.
2.25The United Nations High Commissioner for Refugees (UNHCR) noted that the visa pre-application process could be applied to other visa categories 'subject to the government of the day and will also be subject to parliamentary oversight'. It raised some concerns about the ballot being extended to refugee and humanitarian visas. It suggested:
…that statutory safeguards be introduced in the 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.
2.26Some of the evidence received by the committee also raised concerns about the cost to register in the visa pre-application process. For example, the NACQ submitted:
…the fee being a non-refundable fee, for a visa where there is nothing that the applicant can do to guarantee success is inherently unfair.
The lack of merit that a lottery provides is something that we oppose.
2.27Mrs Vueti explained to the committee that community leaders were initially concerned about the cost to register in the visa pre-application process.However, when those community leaders:
…were told the amount, they were quite shocked; they didn't think it would only be $25. At this stage, that nominal fee is welcomed by our community because they've said that they need to at least have a system where people know that they are trying for something and that they are committed to it.
2.28The PEV is modelled on the New Zealand 'Pacific Access Category Resident Visa, which operates an annual ballot'. Applicants that register for that visa are also required to pay a charge, but DFAT noted that the proposed fees associated with the PEV are 'substantially lower than those in the New Zealand scheme'.
2.29The Department of Home Affairs (Home Affairs) also indicated that the proposed fee associated with the PEV scheme:
…is only a marginal amount compared to the current process where visa applicants are required to pay a non-refundable Visa Application Charge to apply for an over-subscribed visa program with only limited places available.
2.30DFAT outlined the rationale for the adoption of a ballot in the visa pre‑application process:
The ballot process is a key measure to ensure a fair and transparent process for applicants across the Pacific and Timor-Leste, particularly with demand expected to exceed the number of visas offered each year. The ballot process is also an important means of ensuring the Pacific Engagement Visa does not contribute to the loss of skilled migrants by providing equal access for participants regardless of skill level or gender, as well as applicants from rural and remote locations.
2.31Ms Powell stated that the rationale outlined by DFAT is recognised and welcomed by partner governments across the Pacific.
2.32Home Affairs explained that the ballot process ‘promotes fairness by providing equal opportunity for all ballot participants and minimises the risk of 'brain drain' from the region’.
2.33Home Affairs pointed out that in the immigration systems of New Zealand, Canada, and the United States:
…a ballot has been used to provide prospective applicants with equal opportunity to access highly subscribed permanent visa programs, where the primary purpose of the program is not economic migration.
2.34Home Affairs explained that 'the Australian migration framework has limited ways to manage oversubscribed visa programs'. The Migration Amendment (Australia’s Engagement in the Pacific and Other Measures) Bill 2023 would introduce a ballot system that could be 'use[d] in Australian visa programs where the number of eligible applicants greatly exceeds the number of places available under the visa program'.
2.35Dr Bryson explained that the legislation for the visa pre-application process has not been linked to a specific visa class:
Otherwise, whenever we had to update the name of the program or the subclass or any details around the program, we'd have to come back and go through this bills process. So it's a question of procedurally providing just a high-level power in the act, and then, following that, those details of an actual process for a particular visa subclass will be in a disallowable instrument, which is subject to further scrutiny by parliament.
2.36Ms Bjerregaard stated:
…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.
Access to JobSeeker payment for newly arrived residents
2.37Some of the evidence presented to the committee argued that being subject to the four-year newly arrived resident's waiting period for access to the JobSeeker payment could place burdens on the Pacific Islander diaspora already resident in Australia.
2.38Mr Tavui and Mrs Vueti were aware of instances where the Pacific Islander diaspora communities in Australia had supported temporary migrants who were unable to work.
2.39Mrs Vueti hoped that the PEV scheme could be designed with a 'safety net' that does not rely on Pacific Islander diaspora communities for support when successful applicants are unable to work.
2.40According to the NFF, the lack of immediate access to JobSeeker payments could also give employers greater leverage over PEV workers. Mr Rogers suggested that the risk of losing their job, and not having access to JobSeeker, 'is going to be a pretty powerful motivator for the employee not to upset the employer, giving the employer greater power in that relationship'.
2.41Professor Howes suggested that exceptions to the migration rules should generally be avoided, including for the four-year JobSeeker waiting period, 'but I understand why some exemptions are being made. I just caution against making more and more exemptions'.
2.42DFAT stated:
There is no intention to waive the four-year Newly Arrived Resident's Waiting Period for access to the JobSeeker payment, so that participants are encouraged to engage in the workforce and connect with the Australian community. Pacific Engagement Visa holders will have access to the Settlement Engagement and Transition Support (SETS) Program which includes employment support services to help migrants reengage with the workforce, along with access to support payments while training or studying.
2.43Home Affairs outlined the support services that PEV holders would have. As permanent residents in Australia they:
…can live, work and study anywhere in Australia and will have immediate access to Medicare, public schools, Commonwealth Supported Places, Child Care Subsidy and Family Tax Benefit Part B.
Subject to the passage of relevant legislation…[PEV holders would be provided with] immediate access, where eligible, to the Higher Education Loan Program, Vocational Education and Training Student Loans, as well as Austudy, Youth Allowance (students and apprentices), Family Tax Benefit A and associated payments such as rent assistance and energy supplements.
PEV holders will also have access to the Settlement Engagement and Transition Support (SETS) Program that provides migrants with settlement-related information, advice, advocacy, and assistance to access mainstream and other relevant services.
…
On arrival in Australia, PEV holders will also have access to the Adult Migrant English Program (AMEP) on an opt-in basis to assist with English language skills to enhance their experience in settling in Australia.
2.44In relation to the JobSeeker Payment, Home Affairs explained:
The existing four-year Newly Arrived Resident's Waiting Period will apply before PEV holders can access the JobSeeker Payment. Under existing exemption rules, 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.
Transparency and integrity of the visa pre-application process
2.45Some submitters raised concerns about the transparency and integrity of the visa pre-application process.
2.46The Federation of Ethnic Communities’ Council of Australia (FECCA) outlined the key components of a transparent and accountable migration system:
A transparent and accountable migration system includes clear processing timeframes, accessible reporting on the numbers and status of lodged applications, and accessible review of decisions. A migration system’s accountability is strengthened when robust feedback loops exist, and the program is evaluated by those who are affected by it.
2.47To that end, FECCA recommended:
…designing a comprehensive evaluation system into the design of the visa and once the visa has been implemented, conducting ongoing evaluations to determine the outcomes and efficiency of the visa program including access and equity issues such as visa cost and the ballot system. The evaluation will assist to determine consideration for future expansion and increasing intake.
2.48Home Affairs reported to the committee that it ‘is mindful of concerns regarding the use of the automated computer system in the ballot registration and selection process and the integrity of such a system’.
2.49Home Affairs further explained:
The proposed automation is limited to acceptance of a person’s registration in a ballot and the random selection of registered entrants. There is minimal risk of legal error in this process, for example incorrectly blocking an attempted registration, as the eligibility requirements are minimal and objective, for example age and passport held. It is not proposed that officers of the Department will assess any of these matters in the ballot process. There would be no incentive for persons to manipulate the ballot by including false information, as the ultimate result will either be an invalid visa application or a valid visa application that must be refused, as the ballot eligibility requirements in addition to other criteria such as identity, health and character, will be legislated in the specified visa requirements.
2.50Home Affairs suggested that the transparency and integrity of the system is upheld through the use of an automated process:
The process of random selection will involve a simple algorithm. The use of an automated process to conduct the random selection and send out notification is itself an assurance of transparency and integrity, in that it eliminates any manual intervention in the process and removes any perception of bias in the selection process.
2.51Home Affairs also assured the committee:
The operation of the computer system will be subject to standard quality assurance processes within the Department of Home Affairs and the Department’s operations are subject to review by the Australian National Audit Office.
Compatibility of the Pacific Engagement Visa with the Pacific Australia Labour Mobility Scheme
2.52Several submitters suggested that PALM workers should be given priority in accessing the PEV as they have already engaged with their local community and integrated into Australian society.
2.53The NFF and the Approved Employers of Australia (AEA) suggested that PALM workers should be provided with ‘a deliberate, purpose-built’ pathway to permanent residency. According to the NFF, such a pathway:
…would increase the attractiveness of the program to Pacific Island workers and incentivise their participation in the scheme. It would recognise the significant sacrifice they have made in spending extended periods away from families, friends and communities in order to access economic opportunities available in Australia.
2.54The AEA expressed a similar view and suggested that such a pathway would ‘not only be attractive to employees and employers, but also reward them for returning year on year’. It noted that the sponsoring Approved Employer would need to recommend employees before they could access the pathway to permanent residency.
2.55The Australian Chamber of Commerce and Industry proposed that a PEV pilot program could be established, with only PALM scheme participants invited to apply. Business NSW put the same proposal and, as an alternative measure, suggested that PALM scheme participants could be permitted to make two entries in the proposed ballot.
2.56Mr Tavui noted that PALM workers have integrated into the local community while they have been working in Australia. He explained:
A community is already established under PALM, with a level of engagement with and integration into the community. The only drawback would be the other three countries that are not a part of PALM won't get this opportunity.
2.57Mr Tavui stated that his organisation saw 'the benefit of having these PALM workers being part of the Pacific engagement visa on a specific arrangement so that they can be given this opportunity because they're already here'. He suggested that conducting a ballot that is limited to PALM workers already resident in Australia would help to create a larger Pacific Islander diaspora community that could assist new arrivals when the PEV ballot is opened to a wider range of applicants.
2.58Dr Bailey agreed that offering permanent residency to PALM workers would increase the size of the Pacific Islander diaspora community in Australia, which could assist new migrants arriving on a PEV. She also suggested that further consideration should be given to the 'support systems' provided to new migrants and noted that the New Zealand Pacific access category visa 'doesn't really prepare future migrants to come into the country, which is an issue'.
2.59Mr Tavui also noted that some countries, including Vanuatu and Timor-Leste, have small diasporas in Australia but 'are the biggest contributors to PALM'.
2.60The NFF provided a counterargument from the perspective of Australian employers engaged in the PALM scheme. Mr Rogers argued that offering a path to permanent residency for PALM workers would help to ensure 'a sense of continuity within the workforce…[by] making sure that those skills, which have been developed at that job, can be retained and used by that employer rather than being lost overseas'.
2.61The Development Policy Centre argued ‘that it would be unwise to link the two migration pathways explicitly’. It presented five reasons for not linking the PEV and PALM migration schemes:
offering permanent migration to PALM participants would encourage skilled Pacific workers to take up unskilled positions in Australia and contribute to ‘brain drain’ in PICs;
linking the two migration schemes ‘would skew selection in favour of countries that have been successful in PALM’ and would not increase the diasporas of underrepresented PICs in Australia;
linking the two migration schemes ‘would not solve worker shortage problems. [As u]pon receiving permanent residency, many current workers would quit their current jobs and move to better-paying jobs in the city’;
Pacific Island workers would be discouraged from ‘speaking out during instances of mistreatment for fear of jeopardising a pathway to permanent residency’ if the two migration schemes were linked; and
as 80 per cent of PALM workers are men, linking the two schemes would ‘give men a better chance than women of accessing a PEV visa’.
2.62For those reasons, the Development Policy Centre maintained that ‘PALM workers should be eligible to apply for the PEV visa. But they should not receive special access to it’.
2.63Professor Howes suggested that linking the two visa programs 'would be a diplomatic minefield'. He explained that the PICs that are engaged with PALM understand that it is a temporary migration program, they expect that their citizens are going to send:
…some remittances, get some skills and come back, and they're very sensitive to the idea that now, all of a sudden, they're going to be here permanently. That's going to cause a real diplomatic backlash.
2.64DFAT explained that the PEV scheme has been designed to 'complement [the PALM scheme]…by providing a new, dedicated permanent residency visa for the Pacific family and Timor-Leste'.
2.65It further submitted that the PALM scheme will continue to operate separately from the PEV scheme 'to meet workforce shortages in rural and regional Australia, support the economic development of Pacific countries and build skills for when workers return home'.
Committee view
2.66The Migration Amendment (Australia's Engagement in the Pacific and Other Measures) Bill 2023 would establish the legislative power for a visa pre‑application process to be conducted.
2.67The Migration (Visa Pre-application Process) Charge Bill 2023 would impose a charge of up to $100 on persons who register to participate in a visa pre‑application process.
2.68The committee supports the primary and immediate purpose of the bill as outlined in the Explanatory Memorandum, which is 'to build a strong and engaged Pacific diaspora in Australia'. The committee recognises that the introduction of the Pacific Engagement Visa would support healthy, engaged, and resilient Pacific Islander and Timorese diaspora communities in Australia.
2.69The Australian government has recently highlighted the significant contribution that permanent migrants have made to economic development and wider society. The review of the migration system stated that 'care needs to be taken to ensure migration does not encourage a 'brain-drain' that robs Pacific Islands of capability and erodes their further prospects'.
2.70The committee is convinced that the visa pre-application process is an appropriate, fair and effective mechanism for inviting individuals to apply for a Pacific Engagement Visa. Skilled and unskilled workers are equally likely to be selected through the visa pre-application process to apply for a Pacific Engagement Visa. This ameliorates the concerns raised in some submissions about the scheme contributing to skills and labour shortages.
2.71The committee also acknowledges that linking the Pacific Engagement Visa to the Pacific Australia Labour Mobility (PALM) scheme could contribute to 'brain drain' in Pacific Island countries and may not be supported by Pacific country governments. For that reason, the committee believes that giving priority to current or former PALM visa holders would be contrary to the objectives of the Pacific Engagement Visa. The committee notes that PALM workers in Australia will be able to register for the visa pre-application process and PALM participants can engage with the Pacific Engagement Visa on the same terms as other eligible applicants.
2.72The committee recommends that the Senate pass the bills.
Senator Nita Green
Chair
Labor Senator for Queensland