Dissenting Report by Coalition Senators
1.1The Coalition supports a well-structured, well planned immigration policy and supports efforts to engage more with our Pacific neighbours.
1.2We support the concept of a Pacific Engagement Visa (PEV), but we do not support this being done by a lottery or a ballot.
1.3These Bills will for the first time create a ballot or lottery process to secure a visa to enter Australia. This is a fundamental change to our immigration system.It causes us grave concern for the reasons set out in paragraphs 1.4 to 1.11.
1.4The process to obtain a visa, to obtain permanent residency and, ultimately, to embark on the pathway to citizenship should not depend upon luck or chance.This is a radical departure from the way in which Australia has conducted its immigration process over many decades. Whilst not intended by the proponents, it necessarily devalues the worth of each applicant by not taking into account their personal merits or circumstances. A number of submissions made to the inquiry into the review made this exact point. We quote the following:
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.[1]
The Cook Islands Council of Queensland opposes the fundamental concept of the lottery system being proposed by the bill. The lottery concept ends merit as the basis of entry into Australia on the basis of anything other than the place of residence of an individual. Fundamentally, this disregards the migration patterns of Polynesian peoples around the Pacific.[2]
…our people are being excluded, our migration patterns are being disrespected and this committee is considering a bill to charge people for a lottery that treats people’s futures as if it were a game – we oppose this bill and the underlying visa structure as constructed by the government.[3]
1.5One of the particular issues with the adoption of a lottery/ballot scheme is that it provides no recognition to those participants in the Pacific Australia Labour Mobility (PALM) scheme who have made an outstanding contribution under that scheme and established close links with employers, communities and Pacific Island diasporas in Australia.In our view, it is inappropriate that such participants are left to go into the lottery with all other entrants without any recognition being given to the successful links they have established with Australia.
1.6As is acknowledged by the Government, the visa categories that would be subject to the visa pre-application process are those specified through amendments to the Migration Regulations 1994 (Migration Regulations).[4] The visa categories which may be subject to the lottery process are not specified in the Bill. This is even though it is a matter of great importance and would be of substantial interest to Parliament.
1.7Given this is such a radical departure from settled immigration policy and procedures, any further application of this approach should be the subject of debate in Parliament and not permitted to be applied through regulation.
1.8The concerns have been clearly expressed by the Scrutiny of Bills Committee.We agree with the views of that Committee. Refer to the below extract from Scrutiny Digest 2/23:
It is further noted that while the bill has been introduced in anticipation of the creation of the Pacific Engagement Visa, the bill provides for the power to undertake visa pre-application processes in relation to any visa. The committee considers that the rationale for allowing the visa pre-application process to apply to any visa has not been sufficiently explained within the bill's explanatory materials. The committee's concerns in relation to the inclusion of significant matters in delegated legislation are heightened given the potentially broad application of the regulation making powers introduced by the bill.[5]
1.9In response to these concerns, the Minister for Home Affairs advised that ‘the migration system needs to be adaptable and responsive to economic changes' (refer to section 1.45 of the Majority Report). Further, the power to apply a visa pre-application process (i.e. the ballot/lottery) would remain subject to disallowable future amendments to the Migration Regulations (refer to section 1.48 of the Majority Report).
1.10With due respect to the Minister, neither of these arguments deal with the scrutiny issues identified and prosecuted by the Scrutiny Committee. First, flexibility and responsiveness are no answer to the legitimate expectation that Parliament will have the opportunity to consider the implementation of a policy of substantial import. As identified by the non-partisan Scrutiny Committee, the application of a lottery or ballot to a visa application process falls four square within that category of matters which should be dealt with in a Bill. Second, the disallowance process does not provide the same rigour as debate of a Bill.
1.11As the Scrutiny Committee stated:
The committee does not consider the need for flexibility and the need for responsiveness to be an appropriate reason to include significant matters in delegated legislation in this context. On the contrary, 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. While the Parliament retains the ability to disallow instruments, a legislative instrument, made by the executive, is not subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill and may considerably limit the ability of the Parliament to exercise appropriate oversight over the new visa pre-application process.[6]
1.12Opposition Senators are strongly committed to providing employment opportunities in Australia for citizens of Pacific Island nations and Timor-Leste. It was the previous Coalition Government which delivered on this commitment through the PALM scheme, which has been enormously successful.
1.13We consider the PALM scheme could be a suitable vehicle in which to develop a Pacific Engagement Visa. PALM has provided the benefits sought by all parties, including Australia, Pacific Island nations as well as individual workers, employers and families and communities which benefit greatly from the remittances sent home.
1.14PALM already has a strong support system in place to assist new workers settle into life and work in Australia, something that is critical to the long-term success of any such scheme. We consider this aspect fundamental to the long-term sustainability of any new policy approach.
1.15We also consider that a period of proven, successful work participation in Australia under PALM should create a qualification for a potential PEV. This could avoid the need for a lottery and ensure the PEV recipient was better placed to successfully take up permanent residency in Australia.
1.16Very strong submissions were received from the Niue Advisory Council of Queensland and the Cook Islands Council of Queensland regarding the exclusion of the Cook Islands and Niue from the scope of the PEV. In addition, those submissions also refer to other countries which are not included. This is dealt with in sections 2.4 to 2.16 of the Majority Report.
1.17In relation to the response made by DFAT that the people of the Cook Islands and Niue have other pathways (i.e. New Zealand) to come to Australia, that misses the point. This is about Australia’s engagement with the Pacific, not New Zealand’s engagement.
1.18The Opposition Senators support the concerns raised by the Niue Advisory Council of Queensland and the Cook Islands Council of Queensland.
1.19There are a number of other concerns in relation to the Bill:
(a)While the pre-application charge may not seem large in an Australian context, it could be material in the context of some parts of the Pacific. Moreover, there is a concern that unscrupulous operators could take advantage of members of certain communities by offering to facilitate entry into the lottery for an additional fee.
(b)If the Bill is passed, given population differences across the Pacific, consideration would need to be given to providing weighting to particular jurisdictions to ensure that they have a minimal level of participation.
(c)Consideration needs to be given to potential “brain drain” issues. Whilst the scheme is open to both skilled and unskilled applicants, the reality is that it is skilled applicants who are more likely to receive employment offers in stage two of the process. Hence, the ultimate effect may well be that more skilled applicants are accepted in any event. This is why the introduction of the concept through the PALM scheme may well be preferable. Those workers are already here and have already developed skills referable to a particular employer; especially of benefit in regional Australia.
(d)There are concerns with respect to how implementation of the scheme may impact upon remittances. If people come to Australia permanently with their families, are they as likely to make remittances to their countries of origin? Remittances could still be made, but the amounts would necessarily be less if immediate family members become permanent residents in Australia.
1.20The Coalition remains strongly in support of mechanisms which provide employment opportunities for citizens of the Pacific Islands and Timor-Leste as well as pathways to permanent residency.
1.21The Coalition is supportive of the principle of the Pacific Engagement Visa and is willing to work with the Government and Pacific nations in developing proposals for a sustainable PEV which provides a pathway to permanent residency, particularly for those who have demonstrated a work capacity in Australia.
1.22Australia has long enjoyed strong bipartisan support for our nearest neighbours in the Pacific and Timor-Leste and we want to see that continue.
Recommendation 1
1.23It is recommended that permanent residency and citizenship of Australia should not be determined in any way by a lottery process. In any event, whether or not a lottery process should apply to a visa category should only be determined by Parliament through legislation, not by the Executive through regulation.
Recommendation 2
1.24It is recommended that the Government develop a new approach to introduction of the Pacific Engagement Visa where merit is considered.Consideration should be given to recognising the contribution made by participants in the PALM scheme and how such participants could have access to the Pacific Engagement Visa.
Recommendation 3
1.25It is recommended that the Government enter further discussions with community representatives from the Pacific Islands diasporas in Australia, including the Cook Islands and Niue diasporas who made submissions to the inquiry to explore ways in which the Pacific Engagement Visa can be made accessible to the people of the Cook Islands and Niue and potentially other members of the Pacific Family who are currently excluded. As a matter of principle, pathways to enter into Australia via New Zealand should not be relevant.
Recommendation 4
1.26It is recommended that if the Bill proceed there be a weighting mechanism to ensure that the visa is available to communities across the Pacific given differences in population sizes.
Recommendation 5
1.27It is recommended that the Senate not pass the Bill in its current form, but that further work be undertaken to develop a Pacific Engagement Visa which takes into account the above recommendations and the legitimate concerns raised by key stakeholders during the course of this inquiry.
Senator Paul Scarr
Deputy Chair
Liberal Senator for Queensland
Senator Alex Antic
Member
Liberal Senator for South Australia
Footnotes
[1]Fiji Community Association Queensland Inc, Submission 3, p. 1.
[2]Cook Islands Council of Queensland, Submission 4, p. 1.
[3]Niue Advisory Council of Queensland, Submission 1, p. 2.
[4]Refer to section 1.9 of the Majority Report and Explanatory Memorandum to the Pacific Engagement Bill, p. 2.
[5]Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 2/23, 8 March 2023, p. 17.
[6]Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 4/23, 30 March 2023, p. 33.
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