Key points

• The Bills provide for a visa pre-application process – a ballot – to be conducted as part of the application validity criteria for a specified visa. This is a process which does not currently exist in the Migration Act 1958 and its introduction would be a new approach for visa processing in Australia.
• The visa pre-application process would be distinct from the visa application though ‘eligibility requirements for registration in a ballot will reflect some of the key objective criteria for the grant of the relevant visa’.
• The insertion of the visa pre-application process is in order to support the Government’s election commitment to introduce a new permanent Pacific Engagement Visa, which is intended to strengthen ties with the Pacific region. The new visa would be introduced into the Migration Regulations 1994 following passage of the Bills.
• The provisions would allow a visa pre-application process to apply to any specified visa, subject to provision in the Migration Regulations and to rules governing the process for the ballot set by Ministerial Determination. Such Ministerial Determinations would be disallowable.
• The Bills provide for the imposition of a charge on the registration of a participant in the visa pre-application process (separate from the visa application charge). The amount of charge is to be set out in regulations, however, the Minister has stated that the charge for the Pacific Engagement Visa would be $25. The Government’s intent in imposing a nominal charge is to encourage only genuine applications for the process, thereby supporting processing efficiency.

Introductory Info

Date introduced: 16 February 2023
House: House of Representatives
Portfolio: Home Affairs
Commencement: Refer to the commencement provisions section on page 3 below.

Purpose of the Bills

The purpose of the Migration Amendment (Australia’s Engagement in the Pacific and Other Measures) Bill 2023 (the Amendment Bill) is to amend the Migration Act 1958 to provide for a visa pre-application process to be conducted as part of the application validity criteria for a particular visa.

The purpose of the Migration (Visa Pre-application Process) Charge Bill 2023 (the Charge Bill) is to impose a charge on a person who registers in a visa pre-application process as set out in the provisions of the Amendment Bill. A separate Bill is required to impose the charge as there is a possibility the proposed charges may amount to a tax and section 55 of the Constitution requires that a law imposing taxation must not deal with any other matter.

Commencement provisions

The Amendment Bill commences on the earlier of a day to be fixed by Proclamation, or 6 months after Royal Assent.

The Charge Bill commences on the later of the day after Royal Assent, or immediately after the commencement of the Amendment Bill. However, if the Amendment Bill does not commence, the Charge Bill does not commence.

Background

Introducing a ballot system for visas

The Bills form part of the implementation of the Government’s policy to introduce a permanent Pacific Engagement Visa, announced as an election commitment in April 2022. The Government has stated that the visa itself will be introduced into the Migration Regulations 1994 following passage of the Bills (p. 3). Amending the Migration Act is required to introduce the framework to conduct a ‘visa pre-application process’ – a ballot – through which registered persons may be randomly selected to apply for a visa. This would be a new approach to visa applications in Australian legislation.

The idea of a visa ballot system is used in other countries: the proposal has been compared to the United States ‘Green Card lottery’ which allows certain nationalities to enter a ballot for a Diversity Immigrant Visa, granting permanent residency. However, it is more closely modelled on New Zealand’s Pacific Access Category visa ballot.[1]

The Explanatory Memorandum for the Bills states that a ballot system will be a fair method of selecting eligible applicants for visas where demand exceeds available places. It is also intended to manage efficiency in visa processing and avoid long processing wait times for applicants (p. 3).  

Policy context: a permanent visa for Pacific Island countries

The primary policy objective of the Pacific Engagement Visa is to support Australia’s engagement with Pacific Island countries. The Explanatory Memorandum states that the visa would build the number of Pacific Islanders resident in Australia, which is intended to strengthen people-to-people and country-to-country links, provide more options for mobility in the region including potentially to respond to climate change pressures, and boost economic, cultural and social exchange (p. 2). It is therefore not primarily intended to respond to skills gaps in the Australian labour market or as a driver of economic benefit.

Academics and think-tanks have previously argued for Australia to adopt a permanent visa pathway for Pacific Island countries similar to New Zealand’s model. The report of the Joint Standing Committee on Foreign Affairs, Defence and Trade’s inquiry into Strengthening Australia’s Relationships in the Pacific made the recommendation ‘that the Australian Government considers creating a dedicated Pacific component within Australia’s permanent migration intake, similar to the New Zealand model’ (Recommendation 5; see pages 94–99 for the Committee’s overview of stakeholder submissions on the topic).

The Pacific Engagement Visa initiative is in addition to existing dedicated temporary visa programs for Pacific Island countries and Timor Leste. The current visa program is the Pacific Australia Labour Mobility (PALM) scheme. The predecessor scheme, the Seasonal Worker Program, was also modelled on a New Zealand program, the Recognised Seasonal Employer scheme.

In addition to the visa pre-application process (ballot), numerous other features of the Pacific Engagement Visa would be new to the Australian system. These are briefly presented here for context but not discussed in detail – as noted above, the visa would be introduced into the Migration Regulations rather than the Migration Act and is separate from the provisions of the Bills.

• Few visas, particularly permanent visas, are targeted at specific nationalities (the New Zealand and Hong Kong streams of the Skilled Independent (subclass 189) visa being an exception). The Pacific Engagement Visa will be open to certain Pacific Island countries and Timor Leste.
• There will be 3,000 places set annually for the visa. While the Migration Program sets annual planning levels for permanent visas, the Minister’s second reading speech for the Amendment Bill states that these places will be in addition to the places allocated under the Migration Program. The Explanatory Memorandum states that it is intended that a certain number of places each year will be allocated to each country and a ballot or ballots run for each (p. 3). Currently, only certain countries in the Working Holiday Maker program (a temporary visa program) have specific country caps. When the cap is reached for a given year, no further applications are accepted.[2] The Department of Foreign Affairs and Trade has been quoted as stating that ‘the government would prioritise “countries with limited permanent migration opportunities to Australia”, and the number of visas available for each Pacific island was still being determined’.
• While the Government has stated that it is envisaged that the eligibility criteria for the visa will include age, English language, health and character requirements and, for the primary applicant, a job offer, it appears the visa will not have skill-level or occupation requirements (Explanatory Memorandum, p. 3; Department of Foreign Affairs and Trade website). The visa would therefore not be in alignment with the Skill stream of the Migration Program, which has a primarily economic role in filling high-skilled labour market gaps; nor is it a family reunion visa.

Implementing an election commitment

Initial details of the Pacific Engagement Visa initiative were outlined in the Labor Party’s election policy on Pacific Australia Labour Mobility. The policy was confirmed by the new Government following the election, including by Minister for Foreign Affairs Penny Wong and the Minister for International Development and the Pacific Pat Conroy.

Further details were provided in the October 2022–23 Budget: a notable difference from the initial commitment was that the 3,000 places would be in addition to the permanent Migration Program, not from within it. The Budget therefore provides for extra costs, allocating $175.1 million over 4 years from 2022–23 (and $80.3 million per year ongoing from 2026–27) to support the policy (p. 150).

A media release was issued on the day the Bills were introduced into Parliament (16 February 2023), and preliminary information on the Pacific Engagement Visa was published on the Department of Foreign Affairs and Trade website.

Also on 16 February, Minister Conroy stated in an interview that the visa policy would be ‘a revolutionary change in our permanent migration system’ and that it was primarily aimed at building ties with the Pacific region as part of a broader ‘range of policies to support and deepen our relationship’.

In his second reading speech for the Amendment Bill, the Minister for Immigration, Citizenship and Multicultural Affairs, Andrew Giles, confirmed that the intention is for the visa to be established from July 2023. As noted above, this will require passage of the Bills and subsequent amendment to the Migration Regulations to introduce the visa itself, which can be made by disallowable legislative instrument.

Committee consideration

Committee consideration

At the time of writing, the Bills have not been referred to any Committees.

Senate Standing Committee for the Scrutiny of Bills

The Committee has not reported on the Bills at the time of writing.

Policy position of non-government parties/independents

At the time of writing, no non-government parties or independents appear to have commented on the Bill or on the broader policy initiative.

Position of major interest groups

To date, there has been little commentary on the Bill itself or specifically the concept of a ballot for a visa application process. The below provides a sample of positions concerning the broader Pacific Engagement Visa policy but does not go into detail on the different aspects of the visa or program settings.

A number of Pacific Island countries have welcomed or are considering the initiative, including Fiji, Papua New Guinea and Vanuatu, but others, including Samoa, have noted the potential for ‘brain drain’ from skilled workers in Pacific Island countries seeking opportunities in Australia.

Pacific scholars and labour mobility experts have generally commented favourably. Researchers at the Development Policy Centre at the Australian National University’s Crawford School of Public Policy have written a number of pieces on the proposal. Writing in mid-2022, they suggested how quotas for various Pacific Island countries might be set (though not the ballot process as such), and compared the proposed visa with New Zealand’s schemes, concluding that the Pacific Engagement Visa would be ‘very popular and massively oversubscribed’.

An article in the Lowy Institute’s The Interpreter blog argues the initiative ‘promises to add a new and overdue dimension’ to Australia’s relations in the region ‘but its longer-term credibility will depend on a progressively more generous allocation’ than the 3,000 places currently allocated.

Immigration commentator and former Department of Immigration senior official Abul Rizvi writes that the ballot system would not address current issues in Pacific migration to Australia, such as worker exploitation and absconding from the PALM scheme, or ‘brain drain’ from Pacific Island nations. He argues for improvements to the PALM scheme and a skills development-based pathway to permanent residence instead.

The Asia and the Pacific Policy Society has suggested that people who hold or have held visas under the PALM scheme or its predecessors should have priority access to the new visa, given their pre‑existing ties to Australia.

Financial implications

The Explanatory Memorandum (p. 4) notes that $1.5 million over 3 years from 2022–23 has been allocated to support technical changes to the Department of Home Affairs’ information technology systems to enable functionality for a ballot system. Although the charge provided for in the Charge Bill may partially offset this cost, the Explanatory Memorandum notes that the amount of this revenue cannot be estimated at this time.

More broadly, as noted above, the Pacific Engagement Visa measure in the October 2022–23 Budget provides $175.1 million over 4 years from 2022–23 (and $80.3 million per year ongoing from 2026–27) to support the policy (p. 150). The measure is forecast to increase tax revenue by $55 million over the forward estimates.

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bills’ 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 Bills are compatible ‘because, to the extent that they may limit human rights, those limitations are necessary, reasonable and proportionate’.[3]

Parliamentary Joint Committee on Human Rights

The Committee has not reported on the Bills at the time of writing.

Key issues and provisions

Provision for a visa pre-application process

In order to travel to and enter Australia, a person who is not an Australian citizen must apply for a visa. Section 46 of the Migration Act currently sets out the criteria for a valid visa application.

Item 2 of the Amendment Bill will insert proposed subsection 46(4A) which provides that the regulations may prescribe that the criteria for a valid visa application for a particular visa include that the applicant was selected through a visa pre-application process conducted under proposed subsection 46C(1).

Item 3 of the Amendment Bill will insert proposed section 46C, which provides for the legislative framework for the visa application process referred to in proposed subsection 46(4A). In order for a visa pre-application process to be conducted, the Minister is required to determine, by legislative instrument, rules governing the pre-application process.

The provisions allow for a visa pre-application process to apply to any specified visa, meaning that the process could also be applied to visas other than the proposed Pacific Engagement Visa. The Minister’s second reading speech and the Explanatory Memorandum (p. 3) state that this is the intent. However, the Statement of Compatibility with Human Rights in the Explanatory Memorandum rules out an intent to use a visa pre-application process in all cases where applications greatly exceed available places, giving the example of the Refugee and Humanitarian Program visas, which are assessed on providing protection to those most in need (p. 17).

A visa pre-application process is not a visa application

The Amendment Bill provides for a visa pre-application process that is separate from an application for a visa. That is, while a visa pre-application process may be a requirement for a valid visa application under proposed subsection 46(4A), a person selected through a visa pre‑application process must still then apply for the visa and meet its requirements in order for the visa to be granted. Proposed subsection 46(4A) states that insertion of a visa pre-application process does not limit subsection 46(3) or paragraph 46(4)(a) of the Migration Act, which concern criteria for the validity of a visa application. Further, subsection 46(3) and paragraph 46(4)(a) do not limit the eligibility requirements for the visa pre-application process (proposed paragraph 46C(21)(a)).

Proposed paragraph 46C(21)(b) provides that the eligibility requirements for the visa pre‑application process may be different from those for the visa. The Explanatory Memorandum states that ‘the disallowable legislative instrument that would be made to specify eligibility requirements for registration in a ballot will reflect some of the key objective criteria for the grant of the relevant visa’ (p. 16). This would help ensure that only those people likely to be eligible for the grant of a visa would be eligible to register in the visa pre-application process (p. 19).

Settings for a visa pre-application process

Proposed subsection 46C(2) provides that eligible persons must be registered as participants in a visa pre-application process and that registered participants are selected at random, that is, by a ballot (intended to be a computerised selection, as per proposed subsection 46C(11)). The Explanatory Memorandum describes the use of the term ‘ballot’ as a ‘convenient shorthand’ for the whole visa pre-application process (p. 2). Proposed paragraph 46C(2)(a) provides that the relevant eligibility criteria for the process are those set out in a determination made by the Minister under proposed subsection 46C(14).

Proposed subsections 46C(3) to 46C(10) set out characteristics of the visa pre-application process, including that there must be registration time periods and selection time periods, which may be finite or indefinite and may be extendable or repeatable, and that there may be more than one process running concurrently.

The matters that must or may be included in the determination for the rules of conduct for a visa pre-application process are set out in proposed subsection 46C(15). These matters include eligibility requirements for registration as a participant, registration processes and applicable time periods for processes. Proposed subsections 46C(17) and 46C(18) provide that different rules may be made for different visa pre-application processes and classes of persons.

Proposed subsection 46C(20) provides that a determination made under proposed subsection 46C(14) is disallowable.[4] Also as noted in the Explanatory Memorandum, amendments to the Migration Regulations such as to insert a requirement for a visa pre-application process (or to create a new visa subclass) are disallowable (p. 3). The Explanatory Memorandum states that this is appropriate in order to provide parliamentary oversight and scrutiny in the application of the visa pre-application process to particular visas (p. 10).

Visa pre-application process charges

The Charge Bill creates a new Act which provides for the imposition of a charge on the registration of a participant in the visa pre-application process (clause 6). The Charge Bill provides that regulations may be made under the Act (clause 11) and that the regulations may prescribe the amount of the charge (clause 8). The amounts may be different for different visa pre-application processes or different classes of persons, and may be nil. Clause 9 caps the maximum amount of the charge at $100, subject to indexation as provided for in clause 10.

The Minister’s second reading speech for the Charge Bill states that the charge for the Pacific Engagement Visa pre-application process is to be $25. The Explanatory Memorandum for the Bills states that the intent of imposing a nominal charge is to encourage only genuine applications for the process, thereby supporting processing efficiency (p. 4).

The Amendment Bill provides that the regulations may make provisions for the remission, refund or waiver of the charge and exemptions from the charge (proposed subsection 46C(23)). It also provides that if the required charge is not paid at the time of registration, a person is considered never to have been registered as a participant (proposed subsection 46C(22)).