MIGRATION AMENDMENT (WORKING HOLIDAY MAKER) REGULATIONS 2019 (F2019L00196) EXPLANATORY STATEMENT

ATTACHMENT A

AUTHORISING PROVISIONS

Subsection 504(1) of the Migration Act 1958 (the Migration Act) relevantly provides that the Governor-General may make regulations, not inconsistent with the Migration Act, prescribing all matters which by the Migration Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Migration Act.

In addition, the following provisions of the Migration Act may apply:

* paragraph 46(1)(b) provides that, subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if, it satisfies the criteria and requirements prescribed under this section.

* Subparagraph 65(1)(a)(ii) provides that subject to sections 84 and 86, after considering a valid application for a visa, the Minister, if satisfied that the other criteria for it prescribed by this Act or regulations have been satisfied, is to grant the visa.

ATTACHMENT B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Migration Amendment (Working Holiday Maker) Regulations 2019

This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

The Working Holiday Maker (WHM) program consists of two visa subclasses, the Working Holiday (subclass 417) visa and the Work and Holiday (subclass 462) visa. Both WHM visas are granted with a 12-month stay period.

Working holiday makers holding a first Subclass 417 or 462 visa (having never been previously in Australia as a holder of a WHM visa) can be granted a second visa if they have carried out three months of specified work in regional Australia while on their first visa.

The legislative instrument amends the Migration Regulations 1994 (the Regulations) to allow holders of a second Subclass 417 (Working Holiday) visa or Subclass 462 (Work and Holiday) visa to obtain a third visa of the same type if they have spent 6 months working in specified areas of regional Australia. This is in addition to the three months of work required to obtain the second visa.

Additionally, this instrument makes minor amendments to align terminology regarding the period of work required for the second WHM visa between the two visa subclasses.

Human rights implications

The Disallowable Legislative Instrument has been assessed against the seven core international human rights treaties and engages the following rights:

- Right to freedom of movement

- Right to work and rights at work

- Rights to equality and non-discrimination

Right to freedom of movement:

Article 12(1) of the International Covenant on Civil and Political Rights (ICCPR) states:

Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

The introduction of a third year visa option has been designed to leverage incentives for WHMs to work where there is a critical regional need and will directly benefit regional Australia through an additional 6 months of regional work.

Australia's international obligations mean that visa holders cannot be required to live or work in particular areas, but they may be encouraged to do so. As the third WHM visa initiative works as an incentive mechanism, and there is no obligation on visa holders to undertake specified work, there is nothing to preclude first time WHM visa holders working in any area or industry during their first year in Australia. Similarly, for those who have acquired eligibility for a second or third year, by choosing to work in a regional area for the specified period in the first and second year, they too may then work anywhere they choose in their final year.

Right to work, rights at work and rights to equality and non-discrimination

The amendment engages Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which states that:

The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.

This amendment also engages the rights of equality and non-discrimination, primarily Articles 2(1) and 26 of the International Covenant on Civil and Political Rights (ICCPR) and Article 2(2) of the ICESCR especially as it relates to the right to work and the conditions of work under the ICESCR.

Article 2(1) of the ICCPR states that:

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 26 of the ICCPR states that:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 2(2) of the ICESCR states:

The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The primary purpose of the WHM program is to build people-to-people and cultural links between Australia and partner countries, and allow young adults to fund their extended holiday through short-term work. Reciprocity is a key feature of the WHM program, providing young Australians with the same opportunity to travel overseas and undertake incidental and short-term work.

Given that work is not the primary focus of the WHM program, the specified work and eligible regional areas for the purposes of the third WHM visa initiative have been designed to leverage incentives for WHMs to work where there is a critical regional need and in priority agriculture sectors. By restricting the type of work and regions that will be recognised to meet eligibility for the third WHM visa if a working holiday maker wishes to avail themselves of that option, the Government aims to maximise the benefit felt by these regions, whilst also minimising the impact on local job opportunities for young Australians.

These limitations on the right to work are reasonable in the context of setting entry conditions for non-citizens and allowing extra visa time for working holiday makers who have chosen to work in regional areas and is a benefit that supports regional Australia, rather than impermissibly discriminating against those who choose not to take up regional opportunities. The measures are also consistent with the rights of Australian citizens and permanent residents to work, and the employment of Australian job seekers will continue to be prioritised.

Article 7 of ICESCR, states:

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work, which ensure, in particular:

(a) Remuneration which provides all workers, as a minimum, with:

(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

(ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant;

(b) Safe and healthy working conditions;

(c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;

(d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays.

The introduction of the third visa will be achieved through this amendment, with the WHM program (including visa conditions) remaining otherwise unchanged. This includes the requirement that WHM visa holders must provide evidence of lawful remuneration for the required specified work, in accordance with the relevant Australian legislation and awards.

The Government takes issues of migrant worker exploitation very seriously and is committed to ensuring that working holiday makers are treated fairly while working in Australia.

While the Government does not direct the recruitment practices of companies, these practices must satisfy Australian equal opportunity and non-discrimination laws. Holders of temporary work visas are subject to the same workplace laws, entitlements, and protections as Australian citizens and permanent residents. The Fair Work Ombudsman (FWO) enforces these protections and will also monitor the compliance of employers with Australian workplace law.

The protection measures within the WHM program will continue to apply to WHM visa holders throughout their third year. Additional exploitation or discrimination concerns are not expected as this measure is only an extension on the period of time WHMs have access to the program.

Conclusion

The Disallowable Legislative Instrument is compatible with human rights because, to the extent it may limit human rights, those limitations are reasonable, necessary and proportionate.

THE HON DAVID COLEMAN MP
Minister for Immigration, Citizenship and Multicultural Affairs

ATTACHMENT C

Short Form Regulation Impact Statement

Name of department/agency: The Department of Home Affairs

OBPR Reference number:

Working Holiday Maker (WHM) Programme: ID 24272

Name of proposal: Immediate measures to address regional workforce shortages

Summary of the proposed policy and any options considered:

To introduce immediate measures within the existing visa framework to provide assistance to regional industries with critical workforce shortages. As of 1 November 2018, the proposals will increase the numbers of foreign temporary workers in Australia, enable worker portability and expand the definition of priority regional areas for certain temporary visa holders.

WHM Programme:

1. Instrument changes to expand the postcodes listed for 'specified subclass 462 work' from northern Australia to targeted southern areas of Australia.

2. Regulation changes to enable the introduction of a third year visa option for Working Holiday Makers (both subclasses 417 and 462), who from 1 July 2019 onwards complete six months of regional work in the second year.

3. Policy changes to enable the relaxation of the 6 month employer limitation to allow workers to remain with the same horticultural employer for up to 12 months.

4. Policy changes to increase caps on select WHM partner countries to lift the total number of Work and Holiday makers entering Australia..

What are the regulatory impacts associated with this proposal?

This proposals will have Nil regulatory impacts.

What are the regulatory costs/savings associated with this proposal?

It is expected that the overall regulatory costs will be reduced through the proposals.

Changes to the WHM programme will provide visa holders with additional flexibility in how they spend their time in Australia, particularly if they wish to seek a second or third WHM visa. These changes will have no effect on the visa application or compliance of WHM visa holders. There will not be a change in processes..

Relaxing the 6-month limitation would enable employers to have more stable access to labour and reduce how often they will need to recruit workers. While this provides benefits to business and reduces their overall costs, this does not reduce the regulatory costs to businesses.

ATTACHMENT D

Details of the Migration Amendment (Working Holiday Maker) Regulations 2019

Section 1 - Name

This section provides that the title of the Regulations is the Migration Amendment (Working Holiday Maker) Regulations 2019 (the Regulations).

Section 2 - Commencement

Subsection 2(1) provides that each provision of the Regulations specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

The table states that the whole of the instrument commences on 1 July 2019.

A note clarifies that this table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

Subsection 2(2) provides that any information in column 3 of the table is not part of the Regulations. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument. Column 3 of the table provides the date/details of the commencement date.

The purpose of this section is to provide for when the amendments made by the Regulations commence.

Section 3 - Authority

This section provides that the Regulations are made under the Migration Act 1958 (the Act).

The purpose of this section is to set out the Act under which the Regulations are made.

Section 4 - Schedule(s)

This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

The effect of this section is that the Act is amended as set out in the applicable items in the Schedules to the Regulation.

The purpose of this section is to provide for how the amendments in these Regulations operate.

Schedule 1 - Amendments

The purpose of the Regulations is to increase the maximum number of 'working holiday maker' visas that a person may hold in Australia from two to three if they complete 6 months specified work while the holder of a second working holiday maker visa or a bridging visa that is in effect and was granted on the basis that they have applied for a second working holiday maker visa.

Item 1 - Subparagraph 1224A(3)(c)(ii) of Schedule 1

This item makes a consequential amendment to ensure that the requirement to declare that the applicant has carried out at least 3 months specified Subclass 462 work in order to make a valid application only applies to applicants who are applying for their second Subclass 462 visa.

This is consequential to changes that allow a person to apply for and be granted a third Subclass 462 visa if they complete additional required work.

Item 2 - Subparagraph 1224A(3)(c)(iii) of Schedule 1

New subparagraph 1224A(3)(c)(iia) inserts a new requirement that persons who have held two Subclass 462 visas in Australia (including any currently held) and who are applying for their third Subclass 462 visa must provide a declaration that they have carried out specified Subclass 462 work for a total period of at least 6 months in order to make a valid application for their third Subclass 462 visa.

The work must have been carried out either while holding their second Subclass 462 visa or while holding a bridging visa that was in effect and was granted on the basis that they applied for a second Subclass 462 visa.

The reason for permitting the work to be carried out while on a bridging visa waiting for the grant of the second Subclass 462 visa (as well as while actually holding the second visa) is because the time spent on a bridging visa waiting for the grant of the second visa is in effect 'deducted' from the length of the second visa (see clause 462.513). Therefore, it is intended that work done during this time may be counted. However, it is not intended that work carried out while holding the first Subclass 462 visa can be counted, hence the work can only be counted while the person holds the relevant bridging visa in effect (after the first Subclass 462 visa has ceased) or while holding the second Subclass 462 visa. This is intended to increase the benefits to regional Australia by encouraging working holiday makers to spend time in regional Australia throughout the span of their visas.

A further requirement is that all of the work must be carried out on or after 1 July 2019. This ensures that the changes are in place and have commenced before working holiday makers undertake the additional required work.

If a person was granted a Subclass 462 visa outside Australia and never travelled to Australia on that visa, then that visa is not counted as one of the previous two visas. The requirement only applies if the person held two Subclass 462 visas in Australia and is applying for a third Subclass 462 visa.

The effect of amended subparagraph 1224A(3)(c)(iii) is to increase the maximum number of Subclass 462 visas that can be held in Australia from two to three.

Previously, a person could only apply for another Subclass 462 visa if they had only held one Subclass 462 visa in Australia (including any held at the time of application), with the effect that a person could hold a maximum of two Subclass 462 visas in Australia.

The provision now ensures that a person can only apply for another Subclass 462 visa if they have only held two Subclass 462 visas in Australia (including any held at the time of application), with the effect that a person can hold a maximum of three Subclass 462 visas in Australia.

If a person was granted a Subclass 462 visa outside Australia and never travelled to Australia on that visa, then that visa is not counted as one of the permitted visas. The limit is a maximum of three Subclass 462 visas held (for any length) in Australia.

Item 3 - Paragraph 1225(3B)(c) of Schedule 1

This item makes a consequential amendment to ensure that the requirement to declare that the applicant has carried out at least 3 months specified work in regional Australia in order to make a valid application only applies to applicants who are applying for their second Subclass 417 visa.

This is consequential to changes that allow a person to apply for and be granted a third Subclass 417 visa if they complete additional required work.

Item 4 - Paragraph 1225(3B)(d) of Schedule 1

New paragraph 1225(3B)(ca)) inserts a new requirement that persons who have held two Subclass 417 visas in Australia (including any currently held) and who are applying for their third Subclass 417 visa must provide a declaration that they have carried out specified work in regional Australia for a total period of at least 6 months in order to make a valid application for their third Subclass 417 visa.

The reason for permitting the work to be carried out while on a bridging visa waiting for the grant of the second Subclass 417 visa (as well as while actually holding the second visa) is because the time spent on a bridging visa waiting for the grant of the second visa is in effect 'deducted' from the length of the second visa (see subclause 417.511(2)). Therefore, it is intended that work done during this time may be counted. However, it is not intended that work carried out while holding the first Subclass 417 visa can be counted, hence the work the can only be counted while holding the relevant bridging visa in effect (after the first Subclass 417 visa has ceased) or while the persons holds the second Subclass 417 visa. This is intended to increase the benefits to regional Australia by encouraging working holiday makers to spend time in regional Australia throughout the span of their visas.

If a person was granted a Subclass 417 visa outside Australia and never travelled to Australia on that visa, then that visa is not counted as one of the previous two. The requirement applies if the person held two Subclass 417 visas in Australia.

The effect of amended paragraph 1225(3B)(d) is to increase the maximum number of Subclass 417 visas that can be held in Australia from two to three.

Previously, a person could only apply for another Subclass 417 visa if they had only held one Subclass 417 visa in Australia (including any held at the time of application), with the effect that a person could hold a maximum of two Subclass 417 visas in Australia.

The provision now ensures that a person can only apply for another Subclass 417 visa if they have only held two Subclass 417 visas in Australia (including any held at the time of application), with the effect that a person can hold a maximum of three Subclass 417 visas in Australia.

If a person was granted a Subclass 417 visa outside Australia and never travelled to Australia on that visa, then that visa is not counted as one of the permitted visas. The limit is a maximum of three Subclass 417 visas held (for any length) in Australia.

Item 5 - Subclause 417.211(1) of Schedule 2

This item makes a consequential amendment to include a reference to new subclause 417.211(6) as one of the criteria that must be satisfied at time of application if applicable (refer to Item 9 below).

Item 6 - Subclause 417.211(5) of Schedule 2

This item makes a consequential amendment to ensure that the requirement that the applicant has carried out at least 3 months specified work in regional Australia only applies to applicants who are seeking their second Subclass 417 visa.

This is consequential to changes that allow a person to be granted a third Subclass 417 visa if they complete additional required work.

Items 7 and 8 - Paragraphs 417.211(5)(a) and (b) of Schedule 2

These items make technical changes so that the provisions are consistent with the equivalent provisions in Subclass 462. No substantive change is intended, nor is the intent changed.

Item 9 - At the end of clause 417.211 of Schedule 2

This item inserts a new criterion for grant of a Subclass 417 visa that, for persons who have held two Subclass 417 visas in Australia (including any currently held) and who are seeking their third Subclass 417 visa, the Minister must be satisfied that they have carried out specified work in regional Australia for a total period of at least 6 months.

The work must have been carried out either while holding their second Subclass 417 visa or while holding a bridging visa that was in effect and was granted on the basis that they applied for a second Subclass 417 visa and the work must have been completed before the application for the third visa as this is a criterion to be satisfied at time of application.

The reason for permitting the work to be carried out while on a bridging visa waiting for the grant of the second Subclass 417 visa (as well as while actually holding the second visa) is because the time spent on a bridging visa waiting for the grant of the second visa is in effect 'deducted' from the length of the second visa (see subclause 417.511(2)). Therefore, it is intended that work done during this time may be counted. However, it is not intended that work carried out while holding the first Subclass 417 visa can be counted, hence the work the can only be counted while holding the relevant bridging visa in effect (after the first Subclass 417 visa has ceased) or while holding the second Subclass 417 visa. This is intended to increase the benefits to regional Australia by encouraging working holiday makers to spend time in regional Australia throughout the span of their visas.

Further requirements are that all of the work must be carried out on or after 1 July 2019 and the applicant must have been remunerated for that work in accordance with relevant Australian legislation and awards.

Item 10 - Paragraph 417.221(2)(a) of Schedule 2

This item makes a consequential amendment to include a reference to new subclause 417.211(6) as one of the criteria that must continue to be satisfied at time of decision if it applies (refer to Item 9 above).

Item 11 - Paragraph 417.222(b) of Schedule 2

The effect of this item is to increase the maximum number of Subclass 417 visas that can be held in Australia from two to three.

Previously, a person could only be granted another Subclass 417 visa if they had only held one Subclass 417 visa in Australia (including any held at the time of decision), with the effect that a person could hold a maximum of two Subclass 417 visas in Australia.

The provision now ensures that a person can only be granted another Subclass 417 visa if they have only held two Subclass 417 visas in Australia (including any held at the time of decision), with the effect that a person can hold a maximum of three Subclass 417 visas in Australia.

Item 12 - Clause 462.211B of Schedule 2

This item makes a consequential amendment to include a reference to new subclause 462.219 as one of the criteria that must be satisfied at time of application if applicable (refer to Item 14 below).

Item 13 - Clause 462.218 of Schedule 2

This item ensures that the requirement that the applicant has carried out at least 3 months specified Subclass 462 work only applies to applicants who are seeking their second Subclass 462 visa.

This is consequential to changes that allow a person to be granted a third Subclass 462 visa if they complete additional required work. �

Item 14 - At the end of Subdivision 462.21 of Schedule 2

This item inserts a new criterion for the grant of a Subclass 462 visa that, for persons who have held two Subclass 462 visas in Australia (including any currently held) and who are seeking their third Subclass 462 visa, the Minister must be satisfied that they have carried out specified Subclass 462 work for a total period of at least 6 months.

The work must have been carried out either while holding their second Subclass 462 visa or while holding a bridging visa granted while waiting for the grant of the second Subclass 462 visa and must have been completed before the application for the third visa as this is a criterion to be satisfied at time of application.

The reason for permitting the work to be carried out while on a bridging visa waiting for the grant of the second Subclass 462 visa (as well as while actually holding the second visa) is because the time spent on a bridging visa waiting for the grant of the second visa is in effect 'deducted' from the length of the second visa (see clause 462.513). Therefore, it is intended that work done during this time may be counted. However, it is not intended that work carried out while holding the first Subclass 462 visa can be counted, hence the work the can only be counted while holding the relevant bridging visa (after the first Subclass 462 visa has ceased) or while holding the second Subclass 462 visa. It is intended to increase the benefits to regional Australia by encouraging working holiday makers to spend time in regional Australia throughout the span of their visas.

If a person was granted a Subclass 462 visa outside Australia and never travelled to Australia on that visa, then that visa is not counted as one of the previous two. The requirement applies if the person held two Subclass 462 visas in Australia.

Item 15 - Paragraph 462.221A(a) of Schedule 2

This item makes a consequential amendment to include a reference to new subclause 462.219 as one of the criteria that must continue to be satisfied at time of decision if it applies (refer to Item 14 above).

Item 16 - At the end of Subdivision 462.22 of Schedule 2

The effect of this item is to increase the maximum number of Subclass 462 visas that can be held in Australia from two to three.

Previously, a person could only be granted another Subclass 462 visa if they had only held one Subclass 462 visa in Australia (including any held at the time of grant), with the effect that a person could hold a maximum of two Subclass 462 visas in Australia.

The provision now ensures that a person can only be granted another Subclass 462 visa if they have only held two Subclass 462 visas in Australia (including any held at the time of grant), with the effect that a person can hold a maximum of three Subclass 462 visas in Australia.

Item 17 - In the appropriate position in Schedule 13

This item provides that these amendments only apply to visa applications made on or after 1 July 2019.

Commonwealth Numbered Regulations - Explanatory Statements

Human rights implications

Conclusion