On 12 September 2019, the Senate referred the provisions of the New Skilled Regional Visas (Consequential Amendments) Bill 2019 (the bill) to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 11 October 2019.
This followed a recommendation from the Selection of Bills Committee responding to a proposal from Labor. The proposal states the reason for referral as to allow for ‘investigation and consultation with stakeholders on the impact of the legislation’.
Conduct of the inquiry
The committee called for submissions, publishing details of the inquiry on its website and contacting a range of relevant organisations. Interested parties were invited to make a submission by 23 September 2019.
The committee received 19 submissions, which are listed at Appendix 1.
The committee acknowledges the efforts of the people and organisations that made submissions to the inquiry.
Structure of the report
The report has two chapters. This first chapter provides information about the inquiry, an introduction to the new skilled regional visas, outlines the provisions of the bill, and reports on the findings of the Senate Scrutiny of Bills Committee and the Parliamentary Joint Committee on Human Rights in relation to the bill.
Chapter 2 discusses key issues raised by submitters, including:
the definition of ‘regional’;
support for children of visa holders to access state schools;
access to study loan programs;
the requirement to apply for and receive foreign investment approval to purchase residential property; and
exemptions for regional university employers.
The new skilled regional visas
The New Skilled Regional Visas (Consequential Amendments) Bill 2019 seeks to make consequential amendments to a number of Acts to facilitate access to welfare payments and government services for holders of new skilled regional visas, which would be created through an amendment to Migration Regulations 1994 (the Migration Regulations).
The Migration Amendment (New Skilled Regional Visas) Regulations 2019 (the Regulations) would amend the Migration Regulations to introduce two new provisional visas:
the Skilled Employer Sponsored Regional (Provisional) (Subclass 494) visa, which would ‘enabl[e] an Australian business to sponsor skilled workers to work in their business’; and
the Skilled Work Regional (Provisional) (Subclass 491) visa, which is for skilled migrants ‘nominated by a State or Territory government or sponsored by an eligible family member residing in regional Australia’.
These provisional skilled regional visas would require visa holders to live and work in a regional area for three years. The designated regional areas would be identified in a legislative instrument, and would include all of Australia except for Sydney, Melbourne, Perth, Brisbane and the Gold Coast.
The Regulations also seek to introduce a new permanent visa, the subclass 191 (Permanent Residence (Skilled Regional)) visa. Holders of subclass 491 and subclass 494 visas would become eligible to apply for this permanent visa at the end of three years, as long as they have met the conditions.
The Regulations would also provide for a secondary visa with the same conditions to be provided for accompanying family members. The Replacement Explanatory Statement to the Regulations says:
Both the Subclass 491 and Subclass 494 visas enable members of the family unit to make a visa application at the same time as the primary applicant…Both Subclass 491 and Subclass 494 visas are granted for 5 years from the date of grant to primary applicants. Secondary applicants granted a Subclass 491 or Subclass 494 visa are granted a visa aligning to the end date of the primary applicant’s visa.
The visas are part of the government’s ‘Plan for Australia’s Future Population’, announced in March 2019. The government announced that it intends to allocate 23,000 places for these visas within the Migration Program each year.
The government proposed that the new visas will encourage migrants to stay in regional Australia ‘longer-term’, adding that migrants to Australia on new skilled regional visas ‘will build ties to a particular location through workforce participation and community involvement, easing the pressure off our congested cities’.
Provisions of the bill
The bill would amend the following Acts to give holders of the new skilled regional visas, including accompanying family members, the same access to welfare payments and government services as holders of permanent visas:
A New Tax System (Family Assistance) Act 1999
Disability Services Act 1986
Fair Entitlements Guarantee Act 2012
Higher Education Support Act 2003
National Disability Insurance Scheme Act 2013
Paid Parental Leave Act 2010
Social Security Act 1991.
The mechanism by which the bill grants access to payments and services is by amending the definition of ‘Australian resident’ so that people who reside in Australia and hold a provisional skilled regional visa (a Subclass 491 or 494 visa) ‘are also considered to be an Australian resident’.
The bill consists of three schedules. Schedule 1 would amend social services legislation, including the A New Tax System (Family Assistance) Act 1999, the Disability Services Act 1986, the National Disability Insurance Scheme Act 2013, the Paid Parental Leave Act 2010, and the Social Security Act 1991, to include provisional skilled regional visa holders in the definition of ‘Australian resident’ for the purposes of determining eligibility for services, programs and payments.
This schedule would also make amendments that relate to the waiting periods holders of the new skilled regional visas would serve before being able to access payments and programs. Migrants to Australia are not generally eligible for payments until they have served a waiting period. In the case of most payments this period is four years. For Parental Leave Pay, Dad and Partner Pay and Carer Payment, it is two years. For Carer Allowance and Family Tax Benefit Part A it is one year. There is no waiting period for Family Tax Benefit Part B. These provisions provide that waiting periods for provisional skilled regional visa holders start ‘when they become the holder of that visa and [do] not re-start once granted a permanent visa’.
Schedule 2 would amend the Higher Education Support Act 2003 to entitle provisional skilled regional visa holders to a Commonwealth Supported Place, and access to FEE-HELP, if they are undertaking a higher education unit as part of a bridging course for overseas-trained professionals.
Schedule 3 would amend the Fair Entitlements Guarantee Act 2012 to entitle provisional skilled regional visa holders to the ‘Fair Entitlements Guarantee’. The Fair Entitlements Guarantee is a legislative safety net scheme which allows eligible employees to make a claim for ‘certain unpaid employment entitlements’ if they lose their job ‘due to the liquidation or bankruptcy of their employer’.
In relation to the bill, the Department of Home Affairs explained:
Most of these skilled migrants are not expected to claim social security payments, such as Newstart Allowance or Disability Support Pension. They are coming to Australia to work and to contribute to regional areas across Australia. However, these changes ensure a safety net is available should they find themselves in need, for example, due to a change in circumstances. These changes also ensure that visa holders with children can access support to enable them to fully participate, such as the child care subsidy.
The department explained that new skilled regional visa holders would also be eligible for ‘the full range of existing exemptions’ from waiting periods in cases where visa holders may encounter the unexpected, such as ‘injury, relationship breakdown or domestic violence’.
Consideration by other parliamentary committees
Standing Committee on Regulations and Ordinances
The Senate Standing Committee on Regulations and Ordinances assessed the Regulations and reported that it is seeking further advice from the minister in relation to merits review.
The Replacement Explanatory Statement on the Regulations indicates that, for these visa types, merits review is not available in relation to departmental decisions regarding refunding visa application fees, nomination fees and nomination training contribution charges.
The Replacement Explanatory Statement identifies this position as:
…consistent with the current position in relation to refunds of fees and charges under the Migration Regulations, including nomination fees, the nomination training contribution charge and visa application charges.
The Chair of the Regulations and Ordinances Committee, Senator Fierravanti-Wells, gave notice to the Senate on 16 September 2019 of a motion to disallow the Migration Amendment (New Skilled Regional Visas) Regulations 2019. The motion must be resolved by the Senate within 15 sitting days after that date, or the Regulations will be automatically disallowed.
Scrutiny of Bills Committee
The Senate Standing Committee for the Scrutiny of Bills had no comment on the bill.
Parliamentary Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights considers that the bill does not raise human rights concerns.